Cheung Tak Wing v. Communications Authority and Another
Read the full judgment text of HCAL 60/2015 on BabelCite. This High Court CFI judgment was delivered on 9 November 2018.
1. This is the applicant’s judicial review application to challenge the decisions (“the Decisions”) made respectively by the Communications Authority (“the Authority”) and the Director of Information Services Department (“the Director”). The Decisions relate to the broadcast through domestic free and paid TV and radio since 22 April 2015 of certain materials (“the Impugned Announcements”) supplied by the Government.
Cited by 8 cases · Cites 7 cases
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HCAL 60/2015 [2018] HKCFI 2481 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 60 OF 2015 _______________ BETWEEN
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_______________ J U D G M E N T _______________ A. INTRODUCTION 1.This is the applicant’s judicial review application to challenge the decisions (“the Decisions”) made respectively by the Communications Authority (“the Authority”) and the Director of Information Services Department (“the Director”). The Decisions relate to the broadcast through domestic free and paid TV and radio since 22 April 2015 of certain materials (“the Impugned Announcements”) supplied by the Government. 2.The Impugned Announcements are entitled “2017, Make it happen!” (2017, 一定要得). In them, they convey messages in relation to the Government’s proposals (“the Reform Proposals”) concerning how the method for selecting the Chief Executive in Hong Kong (“the CE”) be amended. At the time when the applicant applied for leave to challenge the Decisions, the motion (“the Motion”) which contained the Reform Proposals would very soon be tabled before the Legislative Council (“the LegCo”) for endorsement by its Members. The Motion (and thus the Reform Proposals) would only be passed if it was endorsed by two-thirds of all the Members of the LegCo. If it was so endorsed, under the constitutional mechanism, the Reform Proposals would further need to be consented to by the CE and then approved by the National People’s Congress Standing Committee (“NPCSC”) before the corresponding amendments would be formally made to the Basic Law[1] to become law. 3.As will be expanded further below, under the relevant legislative provisions and licensing conditions, the Government can require the relevant TV and radio licensees to broadcast free of charge materials supplied by the Government which are “Announcements in the Public Interest” (“API”). Moreover, the Government is also exempted from a ban which prohibits any person to put in advertisements for broadcast which are political in nature. 4.The applicant in this challenge says effectively that the Impugned Announcements are not API. He further argues that, even if they are API, they are in any event political in nature, and the said exemption for the Government is unconstitutional being discriminatory. As such, the Decisions in supplying the Impugned Announcements to the TV and radio licensees to be broadcast are ultra vires or unlawful. Moreover, the applicant also says insofar as the Authority is concerned, it had failed in its statutory duty to vet the Impugned Announcements to ensure that they were API before directing the broadcasters to broadcast them. 5.The applicant in his original Form 86 seeks the relief of various declarations to the effect that the Impugned Announcements are not API and the Authority and the Director acted unlawfully in making the Decisions. Further, the applicant asks for the relief of an injunction to effectively restrain the broadcast of the Impugned Announcements. 6.By way of a summons filed at the same time of the leave application,[2] the applicant also sought an interlocutory injunction to restrain the Impugned Announcements from being broadcast until further order. 7.The court heard the leave application and the interlocutory injunction application on 5 June 2016. By a decision dated 12 June 2015 (“the Interlocutory Decision”), this court granted leave to apply for judicial review, but refused the interlocutory injunction for the reasons set out in the decision. 8.By the time when this matter came for substantive hearing in November 2016, the Motion was already presented to, debated but not passed by the LegCo on 17 June 2015. Hence, by then, it was entirely academic for the applicant to seek an injunction to restrain the Impugned Announcements from being broadcast. 9.Mr Shieh SC (together with Mr Deng) for the applicant therefore formally confirms with the court that the applicant no longer pursues the injunctive relief asked for at paragraphs 4 and 5 in the Re-Amended Form 86.[3] However, the applicant still seeks the following reliefs:
10.Mr Abraham Chan (with Ms Bonnie Cheng) for the Authority and Mr Johnny Mok SC (with Mr Johnny Ma and Mr Justin Ho) for the Director both oppose this application on the basis of (a) the application having become academic, (b) merits, and (c) delay. 11.To understand the arguments raised by the parties properly, I need to first set out the relevant context and background. B. THE RELEVANT STATUTORY AND LICENSING FRAMEWORK B1. The relevant licensing conditions with the TV licensees and Radio licensees
12.In Hong Kong, television and radio broadcasting services are respectively governed and regulated under the Broadcasting Ordinance (Cap 562) (“the BO”) and the Telecommunications Ordinance (Cap 106) (“the TO”). Service providers can only lawfully provide domestic television and radio broadcast services with the respective relevant licences granted by the Chief Executive in Council (“the CEIC”).[4] 13.Terms and conditions are imposed in these licences for the operation of the broadcasting services. 14.A relevant standard condition in all TV licences is as follows:[5]
15.A standard condition in all Radio licences includes:
16.Hence, in substance, it is a standard condition of a TV or Radio licence that the licensee shall broadcast materials or announcements in the public interest (ie, API) free of charge.
17.Schedule 4, Rule 12 of the BO expressly provides that “a licensee shall not include in its service any advertisement of a religious or political nature or connected with any industrial dispute”. 18.Section 23(2) of the BO provides, subjection to subsection (3), that a licensee shall, among others, comply with its licence conditions and any requirements under the BO which are applicable to it. 19.On the other hand, section 23(3) of the BO provides that:
20.In other words, section 23(3) of the BO effectively provides that in the case of materials supplied by the Government, a licensee does not have to comply with any requirements under the BO, which would include the prohibition against the broadcast of advertisements of a political nature under Schedule 4, Rule 12 of the BO. 21.There is no statutory prohibition for political advertisement in radio broadcasts under the TO. 22.Nonetheless, the Broadcasting (Miscellaneous Provisions) Ordinance (Cap 391) (“the BMPO”) contains the following material provisions:
23.Under section 24 of the BMPO, the Authority may impose penalties on a licensee for non-compliance of any Code of Practice. 24.The Radio Code published on January 2013 by the Authority pursuant to section 19 of the BMPO provides at paragraph 28 that: “No advertisement of a political nature shall be broadcast except with the prior approval of the [Authority].” 25.However, paragraph 5(b)(ii) of the Radio Code further provides that for the purpose of the Radio Code, the term advertisement or advertising material does not include announcements in the public interest. 26.It is common ground that, as a matter of fact and practice, only the Information Services Department (“the ISD”) or the Government supplied materials, or those supplied by the Authority as promotional materials for the Authority’s work, would be classified by the Authority as API. 27.Hence, under paragraph 23(3) of the BO and paragraph 5(b)(ii) of the Radio Code, the Government is effectively given an exemption (“the Exemption”) from the prohibition against the broadcast of political materials by TV and radio broadcasters. C. BRIEF FACTUAL BACKGROUND 28.Given that the underlying complaint against the factual broadcast of the Impugned Announcements is no longer relevant by the time of the substantive hearing, I would only set out briefly the relevant background facts relating to its broadcast to put the matter in proper context. They are not in any real dispute and are as follows. 29.Article 45 of the Basic Law (“BL45”) provides for the election of the CE in Hong Kong. 30.Under BL45, the specific method for selecting the CE is prescribed in Annex I (“Annex I”). Articles 1 - 6 of Annex I provide for the method of selection for the CE by way of an Election Committee and set out the framework of the composition of the Election Committee. Article 7 of Annex I provides the constitutional mechanism for amending the method for selecting the CE as set out in Annex I after 2007. 31.In the exercise of its power to interpret the Basic Law under Article 158, the NPCSC made an interpretation of Article 7 of Annex I on 6 April 2004 (“the 2004 Interpretation”). The 2004 Interpretation sets out the procedure in invoking the amendment process of the method for selecting the CE after 2007. 32.When the 2004 Interpretation is read together with Article 7 of Annex I, the procedure of invoking any amendments to Annex I in relation to the method of selecting the CE after 2007 will involve the following five steps (“the 5-step process”):
33.In October 2013, the then CE announced the setting up of the Task Force on Constitutional Development. The Task Force would be responsible for conducting the consultation exercise in respect of the methods for selecting the CE in 2017 and for forming the LegCo in 2016. 34.In July 2014, after a first round consultation exercise conducted by the Task Force, the CE (pursuant to Step 1) made a report to the NPCSC suggesting that amendment should be made to the method for selecting the CE in order to attain the aim of universal suffrage. 35.After studying the report, on 31 August 2014, the NPCSC made a decision (“the 831 NPCSC Decision”), which has effectively prescribed the parameters within which the CE election method can be reformed. 36.On 7 January 2015, the Task Force published a consultation document (“the Consultation Document”) and made the decision to commence a two-month 2nd public consultation (“the 2nd consultation”) on the basis of the Consultation Document. 37.The 2nd consultation ended on 7 March 2015. 38.On 22 April 2015, the CE published the Consultation Report and Proposals, setting out the views the Government had received from the public consultation, and her package of proposals for the method of selecting the CE in 2017. It sets out the Reform Proposals put forward by the Government for the method of selecting the CE. It was the Government’s view that the Reform Proposals conformed with the parameters prescribed under the 831 NPCSC Decision and at the same time reflected the views collected from the consultation exercises. As mentioned above, the Reform Proposals were appended to the Motion to be put before the LegCo for vote. 39.For the above purpose of the above consultation process and the promotion of the Reform Proposals and solicit public support, since December 2013, the Government has produced a series of advertisement concerning the 2017 CE Elections on radio and television, fixed media advertisements (such as signboards in MTR stations), newspapers and interviews with government officials. 40.Among these, the following radio and television advertisements were broadcast between 4 December 2013 and 14 July 2014:
41.Between the time of the submission of the First Consultation Report and the 831 NPCSC Decision, radio and television advertisements entitled “有票，真係唔要” (Your Vote, Don’t Cast it Away!)[6] were broadcast between 7 August 2014 and 1 September 2014. 42.From 2 September 2014 onwards until a date unknown, the following radio and television advertisements were broadcast: “有票，梗係要” (Your Vote, Gotta Have It!).[7] 43.From 10 January 2015 until the close of the 2nd consultation on 7 March 2015 the following radio and television advertisements were broadcast: “2017 機不可失” (2017, Seize the Opportunity).[8] 44.From 22 April 2015 onwards, a series of radio and television advertisements entitled “2017 一定要得!” (2017, Make it happen!) (ie, the Impugned Announcements) were and continued to be broadcast until the Motion was put to the LegCo. 45.The visual element of the television broadcast of the Impugned Announcements consists of a series of shots showing Hong Kong residents of different age groups each looking into the camera to make short statements. The image then changes to shots of the three principal officials namely, the then Secretary for Justice (“the SJ”), the then Secretary for Constitutional and Mainland Affairs (“the SCMA”), and the then Chief Secretary (“the CS”) (collectively the “Principal Officials”). The final visual image is a repeat of the slogan “2017 Make it happen!” with a link to the 2017.gov.hk website. 46.The audio element starts with the sound of a tram, before a light score is overlaid with statements from the visual actors. The statements are: “Having discussed for so long, we can finally get it.” “One person one vote to elect the Chief Executive, We really want to vote”. “We can move forward, Of course we shouldn’t stand still”. “Hong Kong’s future. We can have a say in Hong Kong’s future.” “We really want to vote to elect the Chief Executive.” Upon the introduction of the Principal Officials, they each make a statement. The SJ says: “A regime of universal suffrage that complies with the Basic Law”, the SCMA says “Five million voters electing the Chief Executive for the first time”, and the CS says “For our future, cherish this opportunity, please support the universal suffrage proposal.” 47.The radio broadcast consists of a man and a woman taking turns to speak. The message is largely the same as the audio element of the television broadcast with the exception that SJ and SCMA. Their messages in the video, are instead said by the unknown man and woman. The CS concludes with the same message that she conveyed in the television broadcast. 48.The applicant is a Hong Kong permanent resident and is eligible to vote. It is his position that he does not want to receive the Impugned Announcements which are political in nature. He however reiterates that he takes out this judicial review for the sole purpose of public interest. 49.He applied for leave to apply for judicial review on 6 May 2015, seeking also an interlocutory injunction restraining the Government from continuing to broadcast the Impugned Announcements on television and radio. 50.After a hearing on 5 June 2015, this court by way of the Interlocutory Decision refused to grant the interlocutory injunction but granted leave to apply for judicial review. 51.The Motion was debated and rejected by the LegCo on 17 June 2015. By then, the broadcast of the Impugned Announcements had already come to an end. Hence, by the time of the substantive hearing, there were no longer any live issues as to whether the Impugned Announcements should be continued to be broadcast and whether the decisions to require the broadcasters to broadcast them were lawful or not. D. THIS JUDICIAL REVIEW D1. Grounds of judicial review 52.I have summarized the applicant’s grounds of judicial review in the Interlocutory Decision as follows (which the parties agree is a fair summary):
53.The Authority and the Director both contend that the judicial review should be dismissed on the basis that:
54.I now turn to look at the arguments raised. D2. Should the court entertain this judicial review 55.Mr Shieh for the applicant fairly and rightly accepts that insofar as to the actual broadcast of the Impugned Announcements and the Decisions are concerned, it can be said that those matters have become academic. 56.However, leading counsel says the applicant in this judicial review also seeks declaration as to the meaning of “API” in the licensing conditions, whether the Authority has a statutory duty to vet the Government’s supplied materials to see whether they are API, and whether the Exemption is constitutional. These issues are not only not academic but also very important. This is particularly so, as given the extant ongoing actual circumstances in Hong Kong, it is not unrealistic to say there may be events or circumstances that would arise in the future which may require the resolution of these issues. Hence, it is necessary, appropriate and important for the court to deal with them now. 57.In this respect, it is well recognised that the court can entertain a judicial review which has become “academic” following the principles laid down in Chit Fai Motors v Commissioner for Transport [2004] 1 HKC 465 at paragraph 20(2) - (4) per Ma CJHC (as the learned CJ then was):
58.Mr Shieh further refers this court to R(Brooks) v Islington London Borough Council [2016] PTSR 389. In that case, by the time the matter came to the court for substantive arguments, the issues raised had become academic. Laws J still exercised his discretion to hear the matter for the following reasons at paragraph 26:
59.Bearing the above principles in mind, I agree with Mr Shieh that I should still entertain this judicial review:
60.I would therefore now turn to look at the grounds of judicial review in turn. D3. The API Grounds 61.There are two separate principal issues arising under these grounds:
62.As summarized above, it is the applicant’s principal contention that the objective meaning of “API” refers to an announcement that is in the public interest to be made. The subject matter of the announcement must therefore concern something which can be objectively proven to be “good” or beneficial to the public, in the sense that the advertisement’s purpose is to inform and educate the public by means of imparting information which is in the public interest, and it should convey something “of benefit” to viewers and on which views could act for themselves. 63.In support, Mr Shieh’s core submissions further run as follows. 64.Leading counsel submits that “Announcement in Public Interest” are ordinary English words, and they simply mean an announcement which is “in the public interest” to make. 65.The relevant phrase is not “announcements on a topic of public interest”. It is important to draw an important distinction between (a) whether the announcement deals merely with a topic which is of public interest; and (b) the announcement itself is in the public interest. Determination of whether the Impugned Announcements amounted to API called for an examination of the latter and not the former. The content and purpose of the specific announcement – not merely the “topic” or “issue” and which could be very loosely or broadly formulated – must be scrutinized. 66.If one asks the question, is it in the public interest to issue this announcement (or is this announcement made in the public interest), one must naturally focus on what it is that the recipient is expected to do upon viewing it. At the end of the day all messages are intended at influencing conduct. 67.For example, in the case of a campaign that is thought by the Government to benefit the community (eg, clean Hong Kong, promotion of tourism), the recipients are expected to be educated about the merits of a certain “cause” and then act accordingly (eg, throw rubbish in the dustbin, be courteous to tourists). 68.By way other examples, the public might be:
69.Mr Shieh emphasizes a common thread through these self-evident examples is that they all aim at influencing the public’s conduct by providing relevant information. 70.There may be uncontroversial cases such as clean Hong Kong, or the need to be vigilant and guard against telephone scams. Those are self-evidently in the public interest. Hong Kong should be clean. The public should be vigilant against being misinformed. 71.There could be some messages that are more controversial. However, as long as the message is: (a) grounded in objective scientific consensus or (b) the objective it seeks to promote is one which, under our constitutional framework, has received the requisite political clearance or approval from the relevant organ, then it may be properly be regarded as API. In the latter case, the “beneficial” and “public good” nature of the message is borne out by the fact that it has received the blessing of the relevant organ responsible for determining the well-being of Hong Kong. 72.What is the requisite political clearance or approval (and from what organ) depends on context and the nature of the policy or objective, and how controversial the subject matter is. Often it could be a routine and uncontroversial matter within the remit of individual departments. Sometimes the policy is decided upon on a higher level but can be implemented without legislation. Sometimes legislation is needed or legislative approval through financial budgeting is required. 73.On the other hand, in rebuttal, Mr Mok for the Director has drawn the court’s attention to the following uncontested evidence filed by the Director to show how the term “API” arose historically and what it has consistently and always been intended to mean by the Government since 1986 in imposing it as a licensing condition. 74.Before 1986, the term “announcements of public interest” (instead of announcements in public interest) was used in the relevant statutory provisions in the 1964 Television Ordinance (section 24) and the 1973 Television (Amendment) Ordinance (section 25) (all now repealed) to describe the materials supplied by the Government which television licensees were required to broadcast without charge.[14] 75.However, in 1986, the then Broadcasting Review Board (“the BRB”) recommended to the Administration to the following effect:
76.The Government endorsed the BRB’s aforesaid recommendation. 77.Upon the recommendation of the BRB and the Administration, the Governor in Council then adopted the policy that, to qualify for airtime, the API must meet one of the 3 Criteria set out in above.[16] 78.All these have been expressly set out and contained in the LegCo Brief dated 3 December 1986[17] (“the LegCo Brief”), which states relevantly as follows:
79.Thereafter, by the Television (Amendment) Ordinance of 1988, section 25 of the 1973 Ordinance was repealed and, in lieu of a reference to APIs in such statutory provision, the amended section 25A stated, among others, that “any material required ... pursuant to a condition attached to a licence to be broadcast by a licensee shall be broadcast without charge to the Government”.[18] 80.Thereafter, as a matter of policy, the reference to APIs has since been contained in the television licences (which are issued by the CEIC) instead of statutory provisions.[19] Indeed, such criteria have also been set out in the “Good Practice Guide to Publicity Campaigns (2015 version)” published by the ISD. 81.In the light of the above relevant context to the term “API” since 1986, Mr Mok submits that the API carries the meaning of the 3 Criteria, as it is clear that the same is used as a term of a licensing condition when the CEIC (and formerly the Governor in Council) grants a TV or radio licence to a broadcaster. 82.I agree with Mr Mok. 83.The obligation to broadcast API is a condition imposed in the TV and Radio Licenses by the CEIC. The condition is a standard one. The identified 3 Criteria are the very nature of the materials that the Government, as the grantor of the licence, has required the licensee to broadcast for her (as a condition of the licence). In the premises, it must be relevant to take into account what the CEIC (formerly the Governor in Council), the very entity who imposes the condition, has intended the term to mean. 84.Importantly, the intended meaning of the term “API” has been clearly set out in and supported by objective and publicly available documents (ie, the LegCo Brief, and the “Good Practice Guide to Publicity Campaigns (2015 Version)”). Its said meaning as a licensing condition is thus clear and objectively supported. 85.In any event, in my view, the 3 Criteria meaning is also consistent with the objective meaning of “in the public interest”:
86.Mr Shieh relies on various determinations by Ofcom in the UK on the question of what amounted to “public service advertising” to support what he says the term “API” should mean in Hong Kong. He submits that these determinations have laid down the following guidelines which are relevant to the determination of what “API” should mean:
87.The Ofcom determinations referred to are: Ofcom in the Mayor of London Tower of Hamlets (Ofcom Broadcast Bulletin, Issue Number 222, 21 January 2013, pp 33 - 47) at pp 41 - 42; Ofcom in the Hillsborough Castle Agreement: Advertisement placed by the Office of the First Minister and Deputy First Minister (Ofcom Broadcast Bulletin, Issue Number 182, 23 May 2011, pp 3 - 22) at pp 9 - 10; and Ofcom in the “Bedtime Stories” Advertisement for Act on CO2 (Ofcom Broadcast Bulletin, Issue Number 167, 11 October 2010, pp 20 - 29) at pp 24 - 25. 88.With respect to Mr Shieh, the reliance on these determinations is misplaced. Their determinations are clearly distinguishable. 89.First, the term under determination is in relation to “advertisement of public service nature”, which is materially different from the term of “API”. API by itself (without limiting to “public service”) objectively encompasses a wider meaning. 90.Second, and importantly, these determinations concerned with the objective meaning of “an advertisement of a public service nature” provided under section 321(7)(a) of the Communications Act 2003 in the UK. This is very different from the present context. We are dealing a licensing condition imposed by the Government as the grantor of the licence, and where there are objective publicly available documents showing what the term has been intended to mean. 91.For all the above reasons, I reject Mr Shieh’s contentions and accept Mr Mok’s submissions that the term “API” carries the meaning of the 3 Criteria.
92.Mr Mok submits that it is clear that it is the Government’s policy as well as constitutional duty to take forward the constitutional development of Hong Kong as provided for in the Basic Law. Hence, the message in seeking support for the passing of the Motion, which contained the Reform Proposals in relation to the election method for the CE,[20] is directly related to that government policy and the operational objective under that policy. In the premises, the Impugned Announcements clearly fall within Criterion 3, and hence the meaning of API. 93.Mr Shieh however submits that whether something is or is not a government policy must be viewed in its proper context, it cannot be whatever and whenever the Government says it is a policy, then that subject matter becomes a policy. Leading counsel accepts that the Government is of course entitled to formulate a policy in the ways it regards as appropriate where the subject matter and the carrying out of that policy does not require the endorsement or passing of laws by the LegCo. For example, the Government is entitled to formulate a policy that it is good for the public to “clean Hong Kong” and to promote and implement it. 94.However, in the present context, Mr Shieh contends that, where the reform for the election of the CE is constitutionally guided by the 5-step process, the “intention” of the Government to take forward Hong Kong’s constitutional development as regards the method for selecting the CE in 2017 is at most merely “a proposal to be voted on by the LegCo”. It could only become a policy if that had been finally approved by the LegCo. 95.Further, Mr Shieh emphasizes that it cannot be regarded as something “in the public interest” for the Government to seek public support to “assert their influence … on LegCo members to vote in favour of highly controversial amendments”. Neither could it be regarded properly as Government policy to do so. 96.With respect, I am unable to agree with Mr Shieh. 97.As pointed out by Mr Mok, the natural meaning of the word “policy” includes “the general principles by which a government is guided in its management of public affairs, or the legislature in its measures”[21] (emphasis added). The word “policy” therefore means the general principles or objectives the Government has set to guide its administration of public affairs or its exercise of power in an identified area or subject matter. 98.As I mentioned above, it is generally in the public interest for the government to have a relevant policy in place, and to have it published to the public. That would give better transparency and a reasonable degree of certainty to the public as to how the Government is to carry out its functions and duties in an identified area of public affairs. 99.Once understood as such, there can be no reason in principle to limit the meaning of government policy to only those that can be successfully implemented or carried out, whether or not they require the endorsement or blessing of the LegCo. As observed by Hartmann J in Leung Kwok Hung v President of the Legislative Council [2007] 1 HKLRD 387 at paragraphs 66 - 68, given the different constitutional roles provided in the Basic Law, it is for the Executive and the Administration to formulate policy, whereas the LegCo’s functions include considering bills and enacting legislation relating to those policies. 100.Take for example that the Government decides as a matter of policy in its administration of public affairs to discourage the general public from smoking. Its implementation may also partly include the Government seeking to introduce relevant legislations to ban or restrict smoking in public areas or at workplaces. The success or failure of having the legislations passed by the LegCo cannot then render it not a Government policy. 101.As the meaning of policy shows, in the present circumstances, it must be open to the Government to form the policy that, as a matter of its administration principles and objectives, it would seek to reform the CE election method in the ways it regards to be in compliance with what is permitted by the constitutional provisions and practical reality. The Government may well be correct or wrong in its views as to what that reform proposal should be, and the LegCo may disapprove that at the end of day under the 5-step process (as in the present case). It however would not then make it not a Government policy, albeit it is one that eventually cannot be implemented to the end. 102.In the premises, I agree with Mr Mok that:
103.Mr Mok has also further submitted that, in any event, the Impugned Announcements also fall within Criteria 1 and 2. Given my above conclusion, I do not find it necessary to determine them.
104.Mr Shieh has summarized the two challenges raised by the applicant under this ground as follows:
105.In this respect, I have concluded above that the Impugned Announcements are API. Further, I think it is fair to say there is no real dispute that they can be regarded as political in nature.[22] 106.In the premises, central to these challenges is the question of whether the Authority has a statutory duty to vet the materials supplied by the Government through the ISD. 107.The Authority is a statutory body created under the Communications Authority Ordinance (Cap 616) (“the CAO”) for the purpose of regulating broadcasters. Its powers include all the functions conferred on its predecessors and all incidental powers necessary for the performance of its functions pursuant to sections 4 and 5 of the CAO. 108.The question of whether the Authority has a duty to vet the materials supplied by the Government as API is thus a question of statutory construction. 109.In this respect, it is common ground that there are no express provisions in the CAO imposing such a statutory duty. 110.Mr Shieh contends however that the duty is implied when the relevant provisions under the CAO are properly construed in its object and purpose, and against the BMPO and the TO. Leading counsel’s submissions run as follows. 111.As referred to above, the CAO is to regulate broadcasters with powers necessary for the performance of its functions pursuant to sections 4 and 5 of the CAO. These include powers provided under:
112.The object and purpose of the CAO read together with the BMPO and the TO can therefore be clearly seen: under one umbrella regulatory authority, the Authority had a duty to secure proper standards of broadcasts, and when making any determination or direction to broadcasters, shall only do so “having regard to relevant considerations.” 113.Under the licensing condition (for example, Condition 18.1), the Authority has a power to issue direction for broadcasters to broadcast Government supplied materials. This will only be necessary if the materials are API (but not otherwise). In the premises, as a matter of necessary implication, a public authority who has the power to direct that something must be done, is under a duty to take reasonable steps to acquire the information reasonably required to enable him to make that decision: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, at 1065b per Lord Diplock. 114.The existence of such a duty is further underlined (says Mr Shieh) by the very fact that it is regarded as necessary to interpose the Authority between the Government and the broadcasters for giving the directions. If the Authority is only to act as a rubber stamp or post-box without any duty to examine whether the materials supplied are indeed API, one asks rhetorically what is the purpose of imposing the Authority in between in the first place? 115.Notwithstanding Mr Shieh’s persuasive submissions, I am not eventually convinced. My reasons are these. 116.As submitted by Mr Chan for the Authority, it is well established that public law powers and duties should not be lightly implied. This is particularly so when there exists a detailed and extensively provisioned statutory framework. The court will only imply a statutory duty or obligation when it is clearly necessary to do so 117.Hence, on implying statutory duties, the learned editors of Craies on Legislation (10th edn) observe at paragraph 12.1.1 that:
118.Thus, as matter of general principle:
119.Further, if an alleged duty hinders the effective working of a system, that a fortiori militates against its implication. This ties in with the broader interpretative principle that a proposed statutory interpretation should be partly judged against its practical implications: Lord Neuberger NPJ in T v Commissioner of Police (2014) 17 HKCFAR 593 at paragraph 281; and R (on the application of Edison First Power Ltd) v Central Valuation Officer [2003] 4 All ER 209, at paragraphs 116 - 117 per Lord Millett. 120.Bearing these principles in mind, I agree with Mr Chan that no such API pre-vetting duty on the Authority as submitted by the applicant can be implied. 121.First, the undisputed evidence shows that the present regulatory regime under the relevant statutory provisions in relation to TV and radio broadcast content is post-broadcast and complaint driven. There is no pre-censorship of broadcast material by the Authority of any kind (whether Government supplied or not).[23] 122.This approach has indeed been codified and publicised through the relevant Codes of Practice for TV and Radio issued under section 3 of the BO and section 19 of the BMPO. The approach is also codified by statute in section 11 of the BMPO, which sets out statutory procedures for handling complaints about material which has already been broadcast. 123.The statutory intention for the general approach (and the scope of that approach) is also reflected in the specific and limited exceptions expressly provided in section 36 of the BO and section 13M of the TO. These allow (but do not require) the Chief Secretary to apply to Court for pre-broadcast prohibition orders against the most objectionable forms of content: materials likely to incite hatred against racial or other specified groups, result in a general breakdown of law and order, or gravely damage public health and morals.[24] 124.Further, as rightly pointed out by Mr Chan, the unchallenged evidence shows that there are also good policy and practical reasons that work against implying a duty on the Authority to pre-vet broadcast materials, Government supplied or otherwise:
125.All this accounts for, and in turn is reinforced by, the mechanism expressly provided in sections 11(2)(b) and 11(2A) of the BMPO. These provisions require the Authority to refer any complaint involving “material supplied for broadcasting by the Government and broadcast by a licensee” directly to the Government. These provisions show a legislative intent that:
126.Mr Shieh’s contention that, without a pre-vetting duty, the Authority acts only as a post-box or rubber stamp in relation to Government supplied materials, is in my view not made out given the post-broadcast complaints mechanism. As pointed out by Mr Chan, the issue at hand is whether the Authority has a pre-vetting duty as a matter of necessary implication. Assuming there is a properly functioning post-broadcast complaints mechanism (which the applicant does not dispute), there is no basis for claiming that the absence of a pre-vetting regime must be contrary to the statutory intention or otherwise unlawful. 127.Further and in any event, the Authority’s proper role as regards Government supplied materials is administrative and facilitative. The relevant licence conditions provide the basis for the Authority to perform this role. The steps the Authority takes to execute this role have been explained in paragraphs 42 - 45 of Fong Kuk’s Affirmation as follows:
128.Mr Shieh submits that these purported administrative and facilitative functions or roles are insignificant and do not require the Authority to carry them out. 129.In my view, even if the fact that roles and functions are purely facilitative and administrative in nature, they still show that Authority is not, as submitted by Mr Shieh, interposed between the Government and the broadcasters effectively for no useful purpose. In particular, the relevant licensing conditions, such as condition 18.1 of a TV licence, show that one of the principal functions of the Authority in relation to the broadcast of API is to direct the broadcaster as to the time, period, channel, language and whether within or without such programme these materials should be broadcast.[27] This is not an insignificant role and task,[28] and is one which is commensurate with its role as a regulator. 130.In the premises, there is no basis for contending that the regulatory system under the BO, the TO and the BMPO cannot “properly work” absent such an implied duty. In other words, it is not necessary to imply such a pre-vetting duty on the Authority in order to make the regulatory system work. 131.Second, the legislative history shows that the Administration and legislature had consciously decided against a pre-vetting regime in this context:
132.This shows objectively that it is a clear intention of the Administration and legislature not to impose a pre-vetting regulatory mechanism relating to TV and radio broadcast materials. This plainly goes against an implication of implying a pre-vetting duty to introduce a pre-vetting scheme by the backdoor. 133.For these reasons, the Authority’s functions do not warrant the implication of any pre-vetting power as “incidental or consequential” to those functions. A fortiori, there cannot be a duty arising from such a power by clear necessary implication. 134.I therefore reject the applicant’s ground of challenge that the Authority has a statutory duty to examine the materials supplied by the Director to decide whether they are API or whether they are political advertisements. 135.This takes me conveniently to look at the Exemption Ground. D4. The Exemption Ground 136.Under this ground, as pleaded in the Re-Amended Form 86, the applicant says the Exemption provided to the Government is unconstitutional because it infringes BL25 and HKBOR22 (which protect equality of treatment) when read in light of BL27 and HKBOR16 (which protect freedom of expression). 137.The applicant contends that in banning political advertising in broadcasting media but at the same time exempting the Government from the scope of the ban, the Government is being favoured because of its status and this contravenes BL27 and HKBOR16, read in conjunction with HKBOR22 and BL25. 138.With the greatest respect to Mr Shieh, I am not persuaded. 139.First, BL27 and HKBOR16, which concern with the protection of freedom of expression, provide as follows:
140.It is trite the freedom of expression is not absolute and can be restricted in law subject to the proportionality test. In this respect, it has been accepted by Mr Shieh (at least for the present purpose) that the ban on political advertising on TV and radio is not unconstitutional as, even though the right of freedom of expression is engaged, such a ban is proportionally justified. Indeed, the applicant has reiterated that he is not seeking to challenge the ban in this judicial review at all. 141.This acceptance is in any event clearly right as it has been authoritatively held by the House of Lord in England in Animal Defenders International v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312 and the European Court of Human Rights (by majority) in Animal Defenders International v United Kingdom (2013) 57 EHRR 21 that a similar ban on political advertising in the UK is justified and thus not in violation of Article 10 of the Convention, which is equivalent to HKBOR16. 142.In this respect, it is pertinent to note what Lord Bingham has said at paragraph 26 - 28 of Animal Defenders as follows:
143.If the ban itself is not an infringement of the right to freedom of expression, it is difficult to see how, and indeed illogical to say that, an exemption from it can be regarded conversely as a restriction and thus violation of that right. 144.Mr Shieh at the hearing seeks to rely on what Lord Bingham has said at the end of paragraph 28 of Animal Defenders about “a right to be protected against the potential mischief of partial political advertising” to support his contention that the exemption infringes the rights under BL27 and HKBOR16. 145.This reliance is misplaced. What Lord Bingham is referring to is not a right arising from the freedom of expression, but a right of other people the protection of which justifies the restriction of the right to freedom of expression. That is not a right of freedom of expression nor is it a right protected under BL27 and HKBOR16. 146.The applicant therefore fails to show that the Exemption violates the rights under BL27 and HKBOR16. 147.Mr Shieh next contends that the Exemption is discriminatory in nature and thus violates the protection of equality of treatment provided under BL25 and HKBOR22. 148.BL25 and HKBOR22 effectively provide for the equality of treatment and prohibit against unequal treatment based on various identified personal characteristics and status. They provide respectively as follows:
149.In my view, this contention must also be rejected for the following reasons. 150.First, I simply cannot see how the applicant’s right to equality of treatment is infringed or violated in the present case. He is not a person who wishes to put forward political advertisements but is unable to do so because of the ban. In the premises, he has not been unfavourably treated vis-à-vis the Government by reason of the ban. In other words, he is not being discriminated because of the Exemption. 151.The applicant simply has no basis to bring a constitutional challenge against the Exemption based on discrimination. 152.Second, and in any event, I do not find the Exemption amounts to discrimination prohibited under BL25 or HKBOR22. 153.Right to equality as protected under BL25 and HKBOR22 is about the principle in law that like should be treated alike. 154.In the premises, the law does not treat differential treatment between two groups of person as discrimination if there is sufficient relevant difference between them to justify the differential treatment.[31] 155.Further, as observed by Ma CJ in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at paragraphs 58 - 59, in considering this particular question of whether there is sufficient difference to justify differential treatment, the court usually would also have to take into account the issue of justification as well. As put by Ma CJ at paragraph 58(1), the essential object when considering the constitutional right to equality is to ultimately ask the simple question: “Is there enough relevant difference between X and Y [the comparators] to justify differential treatment?” 156.In this respect, I accept Mr Mok’s submissions that the Government stands in a unique position relevantly different from other Hong Kong residents so far as political advertising is concerned. This is so because:[32]
157.In the premises, the Government is in a sufficiently relevantly different situation from other persons to justify the differential treatment under the exemption. The exemption therefore does not amount to discrimination prohibited under BL25 and HKBOR22. 158.In this respect, it is pertinent to note, as demonstrated in the above considered Ofcom cases, and as noted by Lord Bingham at paragraph 6 of Animal Defenders, a similar statutory exemption is also provided in the UK where the media is also permitted to publish Government’s advertisements which are political in nature if they relate to public service. 159.For these reasons, I reject the Exemption Ground as well. D5. Delay 160.The Authority and the Director both alternatively oppose the judicial review on the basis of delay to the extent that, even if the applicant is successful on any of the grounds of judicial review, the court should refuse to exercise its discretion to grant the reliefs sought. 161.Given that I have rejected all the grounds of judicial review, strictly speaking I do not have to deal with this basis of opposition. 162.However, for completeness, I would briefly dispose of it as follows. 163.Under Order 53, rule 4(1) of the Rules of the High Court, an applicant shall make an application for leave to apply for judicial review promptly and in any event within three months from the date “when the grounds for the application first arose”. At the substantive hearing stage, the court may take into account the delay to decide whether or not to exercise its discretion to grant the reliefs sought.[36] 164.The Director and the Authority both contend that the grounds for the present application first arose at the latest on 2 September 2014. This is so as:
165.Mr Shieh however says there is clearly no delay as the grounds in support of this application arose only on 22 April 2015 when the Impugned Announcements were broadcast. This is so as, unlike the other APIs referred to by the Director, the Impugned Announcements were broadcast after the completion of all the public consultations that had been carried out in relation to the political reform. Thus, the previous materials broadcast can well be argued to fall within the meaning of public interest as they were to encourage the public to submit their views in relation to the proposal to be formulated under the reform. They therefore can reasonably be properly considered as APIs. However, once the consultation exercise had been completed and the Government has already formulated the Reform Proposals, the Impugned Announcements cannot possibly be considered as API for the reasons advanced above. This is the point of time that the grounds for bringing the judicial review did arise, which is 22 April 2015. The leave application was filed on 6 May 2015. There is therefore no delay. 166.Mr Shieh further submits that it is trite that where there is a continuing policy or arrangement, or a continuing breach of fundamental rights, time does not run against an applicant until that state of affairs has come to an end: R v Rochdale Metropolitan Borough Council [1994] ELR 89, 100H; R (on the application of G) v Secretary of State for Justice [2010] EWHC 3407 at paragraph 11. 167.There is some force in Mr Shieh’s submissions. However, I do not think I need to come to a conclusion on these. This is so since, in my view, even if there is a delay in the application for leave to apply for judicial review under all the grounds of judicial review, I am satisfied that notwithstanding the delay, I would have still exercised the discretion to grant the relief if the applicant was successful in this judicial review on merits. This is so because:
E. CONCLUSION 168.For all the above reasons, the applicant fails in all his grounds of challenge on merits. I will therefore dismiss this judicial review. 169.I would make an order nisi that costs of the judicial review (including the costs of the leave application) be to the Authority and the Director, to be taxed if not agreed, with certificate for two counsel. The Authority and the Director are entitled to have each of their own costs borne by the applicant, as each of them are justified to be separately represented and to oppose the judicial review on the grounds that are made specifically against each of them. The applicant’s own costs shall be taxed in accordance with legal aid regulations. 170.Further, I have made a costs order nisi in the Interlocutory Decision that the costs of the interlocutory injunction application (which I have refused) be in the cause of the judicial review. 171.The Director has asked to vary that costs order nisi to an order that the costs be paid to the Director in any event.[40] The Director has submitted that this is an appropriate case to order costs to be paid against the applicant for a failed interlocutory injunction application because that application fell significantly short of satisfying the threshold for the grant of relief sought. This is so as the court has found (in the Interlocutory Decision) against the applicant on both (a) his case on the merits; and (b) balance of convenience.[41] 172.I do not accept Mr Mok’s submissions. 173.Costs is always at the discretion of the court by taking into account all the circumstances of the case to see what is a fair and just order. 174.In this respect, after taking into all the circumstances of the present case, I am of the view that it is fair and just to order the costs of the interlocutory injunction application to be in the cause of the judicial review:[42]
175.I will therefore make absolute the interlocutory application costs order nisi. The costs of the application to vary that costs order nisi shall also be in the cause of the interlocutory injunction application. The applicant’s own costs be taxed in accordance with legal aid regulations. 176.Lastly, I must thank counsel for their very helpful assistance in these matters.
Mr Paul Shieh SC and Mr Earl Deng, instructed by Ho Tse Wai & Partners, assigned by Director of Legal Aid for the applicant Mr Abraham Chan and Mr Thomas Wong, instructed by Eversheds for the 1st respondent Mr Johnny Mok SC, Mr Johnny Ma and Mr Justin Ho, instructed by Department of Justice, for the 2nd respondent [1] Annex I of the Basic Law prescribes constitutionally the method for selecting the CE. See Article 45 of the Basic Law. [2] Dated 5 May 2015. [3] These reliefs are respective an injunction that (1) the Authority (a) be restrained from directing or continuing to direct the TV licensees and the Radio Licensees to further broadcast the Impugned Announcements; and (insofar as necessary) (b) do direct all the TV licensees and Radio Licensees to cease further broadcasts of the Impugned Announcements; and (2) the Director be restrained from supplying the Impugned Announcements from broadcasting. [4] See for example section 8 of the BO, and sectin 13C(2) of the TO [5] As an example, Condition 18.1 of the TVB Licence. [6] Video of clippings of various past protests with voiceover asking a question “Wanna Change?” [7] Video of the past Chief Executive Elections with voiceover of a Hong Kong resident who was only able to observe past elections, but will be able to participate in the 2017 Chief Executive Elections. [8] Same as footnote 5 above. [9] See paragraph 14 above. It is not in dispute that other TV licences contain similar condition. [10] In support of advancing this meaning of “public interest”, the applicant seeks to borrow the meaning ascribed to what amounts to “advertisements of public service nature” adopted in Ofcom in the Mayor of London Tower of Hamlets (Ofcom Broadcast Bulletin, Issue Number 222, 21 January 2013, pp 33 - 47) at pp 41 - 42. [11] See sections 9(1)(c) and (2) of the BMPO. [12] An example of these advanced general directions given to TVB dated 3 October 2001 states that “… you are directed to broadcast the government APIs and the [Authority’s] APIs in accordance with the schedule as prepared and amended by the Information Services Department (ISD) from time to time. Please note that to avoid duplication of work, we will no longer send you copies of API schedules separately. ISD will be responsible for sending you the relevant API schedule.” [13] These Articles provide for and protect equality before the law. [14] See Affirmation of Kei Cheng at paragraphs 9(l) - (2); 2nd Affidavit of McEwan at paragraph 10. [15] See Affirmation of Kei Cheng at paragraph 11. [16] See 1st Affidavit of McEwan at paragraph 12; 2nd Affidavit of McEwan, at paragraph 11; and Affirmation of Kei Cheng at paragraph 10. [17] The LegCo Brief was prepared by the Administrative Services and Information Branch, Government Secretariat with the File Ref: SAIB/I 1245C. [18] See 1st Affidavit of McEwan at paragraph 9(3). [19] For example, see: Renewed Licence of Hong Kong Cable Television Ltd; Amended Licence of Television Broadcasts Ltd, Condition 18.1; Amended and Restated Licence of Hong Kong Commercial Broadcasting Company Ltd, condition 28. [20] See: Affidavit of McEwan, at paragraphs 36 - 37; the Government’s report on the public consultation dated July 2015 at paragraph 1.06; the CE’s report to the NPCSC dated July 2014 at paragraph 5; and the CE’s 2015 Policy Agenda, at pp 151 - 152. [21] Jowitt’s Dictionary of English Law, Vol 2 (2010), p 1731. [22] As pointed out by Mr Shieh, neither the Authority nor the Director has advanced any arguments to say that the Impugned Announcements are not political in nature. I think it must be clear that, given the Impugned Announcements relate to the Reform Proposals concerning the election method for the CE, it must in that sense be political in nature. [23] See Fong Kuk’s Affirmation at paragraphs 19 and 32. [24] See Fong Kuk’s Affirmation at paragraph 20. [25] See Fong Kuk’s Affirmation at paragraph 31. [26] See Fong Kuk’s Affirmation, paragraph 31, and McEwan’s Affidavit, at paragraph 28. [27] See the similar condition 20 of a Pay TV Licence, and the condition a radio licence as set out in Fong Kuk’s Affirmation at paragraphs 38 - 40. [28] See Fong Kuk’s Affirmation, paragraph 43. [29] See sections 33 - 35 in the 1964 and 1973 editions of the TVO, and the amendments introduced by section 4 of the Television (Amendment) Ordinance No 73 of 1980 and Part I item 22 of the Schedule to the Broadcasting Authority Ordinance No 49 of 1987. [30] See Television (Amendment) Ordinance No 22 of 1993, sections 33 - 35. [31] See Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 at paragraphs 19 - 22 per Li CJ. [32] See also the 2nd Affidavit of McEwan at paragraphs 24 - 33. [33] It is worthy to note that the dictionary meaning of “politics” is “The art or science of government, dealing with the form, organization, and administration of a State or part of a State, and with the regulation of tis relations with other States;” and “Activities concerned with the acquisition or exercise of authority or status”. See The New Shorter Oxford English Dictionary (Thumb Index Edition). [34] See the Affirmation of Kei Cheng at paragraph 5. [35] See Affirmation of Kei Cheng at paragraph 6. [36] Section 21K(7) of the High Court Ordinance (Cap 4); Hong Kong Civil Procedure 2019, paragraph 53/14/43. [37] Affirmation of Kei Cheng at paragraph 13. [38] The four APIs are respectively (a) “Your Vote, Don’t Cast It Away” broadcast between 7 and 28 August 2014; (b) ”Your Vote, Gotta Have It” between 3 and 9 September 2014; (c) ”2017, Seize the Opportunity” between 10 January and 7 March 2015; and finally (d) the Impugned Announcements, between 22 April 2015 and 17 June 2015. See paragraphs 40 - 44 above. [39] See Re-Amended Form 86 at paragraph 62. [40] The Director applied by way of summons dated 25 June 2015. The Authority has stated that it is neutral to this application and has not taken part in submissions. The applicant and the Director have respectively filed written submissions for the disposal of this application. At the substantive hearing of the judicial review, the parties agree that I should deal with this variation application in this judgment. [41] See: Kickers International v Paul Kettle Agencies Ltd [1990] FSR 436 at 438-439; Bushbury Land Rover Ltd v Bushbury Ltd [1997] FSR 709 at 712; Mendlowitz v Winner International Group Ltd (HCA 574/2009, 14 May 2010, Au J) at paragraph 30; Wah Cheong Construction Co Ltd v Super Bright Engineering Ltd (HCCT 10/2003, 6 June 2003, Deputy High Court Judge To) at paragraph 5. [42] This court notes Mr Shieh’s alternative submissions are that costs of the interlocutory injunction be reserved. I however am satisfied that the proper costs order for the reasons explained should still be costs in the cause of the judicial review. |
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