Television Broadcast Ltd v. Communications Authority and Another
Read the full judgment text of HCAL 151/2016 on BabelCite. This High Court CFI judgment was delivered on 31 December 2020.
1. The applicant (TVB) is a free-to-air television licence (“FTA Licence”) holder broadcasting free-to-air television programmes in Hong Kong. It derives its principal revenues from airing commercials.
Cited by 1 case · Cites 15 cases
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HCAL 151/2016 and HCAL 47/2017 [2020] HKCFI 3180 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 151 OF 2016 _______________
_______________ and IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 47 OF 2017 _______________
_______________ (heard together) Before: Hon Au JA (sitting as an additional judge of the Court of First Instance) in Court Dates of Hearing: 16 - 18 May 2018 Date of Applicant’s Further Written Submissions: 8 June 2018 Date of Judgment: 31 December 2020 _________________ J U D G M E N T _________________ A. INTRODUCTION 1.The applicant (TVB) is a free-to-air television licence (“FTA Licence”) holder broadcasting free-to-air television programmes in Hong Kong. It derives its principal revenues from airing commercials. 2.It is common ground that as a FTA Licence holder, TVB is subject to the conditions imposed under its licence and the various statutory regulations provided under the relevant ordinances, including the Broadcasting Ordinance (Cap 562) (“the BO”) and the Broadcasting (Miscellaneous Provisions) Ordinance (Cap 391) (“the BMPO”). 3.The Communications Authority (“the CA”) is a statutory body created under the Communications Authority Ordinance (Cap 616) (“the CAO”), which has all the functions conferred to it under, amongst others, the BO and the BMPO. In other words, the CA is the statutory regulator to overlook and regulate, amongst others, FTA Licence holders for their compliance of all the licensing conditions and statutory regulations. 4.For the present purposes, in relation to FTA Licence, the CA has issued the following two codes of practice (collectively, “the Codes”):
5.Under paragraph 1 of Chapter 8 of the TV Advertising Code, a licensee may only place advertising material at the beginning or end of the programme or in a natural break occurring therein unless otherwise permitted by the CA. 6.An exception to this is provided at paragraph 10 of Chapter 9 of the TV Advertising Code. Specifically, it is provided at paragraph 10(a) (“Paragraph 10(a)”) that a licensee may include one or more product(s) or service(s) within a programme in return for payment provided that their exposure or use is “clearly justified editorially, not obtrusive to viewing pleasure and not gratuitous”. 7.In these proceedings, TVB seeks to judicially review:
8.TVB has lodged an appeal to the Chief Executive in Council (“CEIC”) pursuant to section 34 of the BO against the KFC Final Decision (“the Appeal Proceedings”). The Appeal Proceedings are presently stayed. 9.In these judicial reviews, TVB has raised various grounds of challenge under the respective Amended Forms 86. 10.The grounds that are common to both applications are in gist that:
11.The additional grounds that are raised specific to the KFC Final Decision are:
12.The additional grounds raised specifically in relation to the Scoop Final Decision are:
13.The relief sought in the KFC Judicial Review is:
14.The relief sought in the Scoop Judicial Review is the same as in the KFC Judicial Review, save that there is no challenge to any appeal proceedings. 15.TVB is represented by Mr McCoy SC[1], and the CA by Mr Johannes Chan SC[2]. The CEIC[3], who is only involved in relation to the challenge made under Ground 1, is represented by Mr Benjamin Yu SC[4]. 16.Before I deal with each of these grounds in detail, it is necessary to set out the brief relevant background to put the arguments in proper context. This is largely not controversial and can be summarized as follows[5]. B. BACKGROUND B1. The regulatory regime concerning broadcasting standards 17.The CA is an independent statutory body established under the CAO which is independent of the Government: section 3(3) of the CAO. Although its members are appointed by the Chief Executive, the Chief Executive is not a CA member and the majority of its members, including its chairperson, must not be public officers: sections 8(1) - (2) and 9(1)(a) of the CAO. 18.The role of the CA is to regulate the broadcasting and telecommunications industries in Hong Kong[6]. Its functions are set out in, amongst others, section 9 of the BMPO which include the securing of proper standards of television broadcasting with regard to programme content and advertisements. See section 9(1)(d) of the BMPO. 19.The CA is specifically empowered to approve and issue codes of practice under section 3(1)(a) of the BO. In so doing, the CA is required to consult with the licensees: section 3(8) of the BO. 20.The Codes were issued by the CA pursuant to the aforesaid power. 21.Once issued, a licensee is required to comply with all provisions in the codes of practice that are applicable to it: section 23(2)(d) of the BO. Compliance with the codes of practice is also a condition in the licences granted in respect of domestic free television service[7]. 22.Separately, a licensee is required to secure proper standards for its licensed service with regard to, amongst others, television programme content. See: section 23(2)(e) of the BO. 23.Failure to comply with either of the above requirements could result in enforcement action taken by the CA. See section 28(2) of the BO. 24.Since the CA does not pre-censor broadcast content, the regulatory approach it adopts is post-broadcast complaint‑driven. In other words, it relies on the good sense and judgment of the licensees (who are required to observe the applicable standards), and will only intervene if there are complaints from the public[8]. 25.Where complaints are received and are considered not to be trivial or frivolous (section 11(3) of the BMPO), they must be referred to the Broadcast Complaints Committee (“the BCC”): see section 11(1) of the BMPO. This applies to all complaints concerning contravention of codes of practice and licence conditions but do not apply to competition contraventions[9]: section 11(2)(a) of the BMPO. 26.The BCC is appointed by the CA, and comprises three members of the CA as well as members co-opted from the public covering a range of backgrounds including education, journalism, youth service and social welfare[10]. 27.In considering a complaint made, the BCC:
28.After the aforesaid process, the BCC would make recommendations concerning the complaint to the CA: section 11(4)(d) of the BMPO. 29.Thus, before any finding of contravention of the Code of Practice is made by the CA, the matter would have been investigated by the BCC, with full rights given to the licensee concerned to file evidence, make submissions and have an oral hearing. 30.Further, in the present cases as will be seen below, although not prescribed by the BO or the BMPO, the CA has taken the additional step that after it had come to a preliminary view on the complained contraventions, to provide its preliminary findings to TVB and invite it to make representations thereon. It was after considering TVB’s further representations that the CA finalized its view on the complained contraventions and issued the KFC Final Decision and the Scoop Final Decision with reasons given. 31.To regulate the conduct of the licensees, the CA has power, under Part 6 (sections 24 - 35) of the BO (intituled “Enforcement of Licences”), to issue directions to require a licensee to comply with a Code of Practice (section 24), to obtain information from the licensee and third parties to ascertain whether there has been contravention (sections 25 - 26), and in case of contravention, to impose financial penalty (sections 28 - 29), to require the licensee to issue a correction or apology (section 30), and in more serious cases, to suspend or recommend to the CEIC to revoke the licence (sections 31 - 33). 32.Specifically, in relation to section 28:
33.A licensee aggrieved by the decision of the CA so made may appeal to the CEIC by way of petition under section 34 of the BO, whereunder the CEIC:
B2. The Codes 34.There is no dispute that FTA television service forms a significant part of life of Hong Kong. It is the most pervasive form of TV broadcasting as it has a household penetration of almost 100 per cent in this densely-populated city. Dramas and entertainment are the two most popular types of programmes. As graphically described by Mr Chan, at the height of enjoying the romance of a love story or at the exciting of following an action drama, if the actor, suddenly out of context, described how good the food of a restaurant is, the viewers will naturally feel frustrated if not offended. And for the less sophisticated viewers, they may even believe the complimentary remarks without knowing that it is, in fact, an advertisement within a programme. It is against this background that the Codes are issued[11]. 35.Condition 24 of TVB’s FTA Licence provides that the licensee “shall monitor and ensure strict compliance with the Codes of Practice, and technical standards and directions issued by the [CA]”. 36.“Code of Practice” is defined in the FTA Licence as “a code of practice which bears the same meaning given in section 2(1) of the [BO]”, which effectively means it is a Code of Practice issued and approved by the CA under section 3 of the BO. It is the CA’s case the Codes are issued and approved by it under section 3[12]. 37.In relation to placing advertisement or advertising materials by a licensee, the following provisions in the Codes are relevant for the present purposes. 38.Under the TV Programme Code:
39.Under the TV Advertising Code:
40.Hence, under the Codes, it is the general principle that the licensee should maintain a separation of television programmes and advertisements. It could place advertisements or advertising materials before and after a programme and during the natural break therein. In other words, the licensee is not permitted to place advertisements or advertising materials within a programme unless that fulfils any of the criteria provided under paragraph 10 of Chapter 9 of the TV Advertising Code as an exception. B3. The KFC Final Decision 41.The TV Awards Presentation was first broadcast on 13 December 2015. It was a livecast of TVB’s annual awards presentation ceremony and was shown during prime broadcasting hours on a Sunday evening. 42.During the broadcast of the awards presentation ceremony, several people marched onto the stage and delivered trays stacked with boxes of food and drinks from the fast food restaurant chain, KFC (“the KFC Segment”). KFC’s logo was clearly shown on food boxes and soft drink cups and there were medium to close-up shots showing the artistes eating and passing the food around enthusiastically. There were close-up shots showing KFC’s brand logo conspicuously in the livecast. The female host of the programme twice made the remark “食好嘢” when referring to the sponsor’s products. The KFC Segment lasted for about 1 minute and 12 seconds. 43.TVB received payment from KFC for exposing its products during the KFC Segment, which was clearly designed to advance the sale of KFC’s products. TVB’s position is that as KFC was a product sponsor, the broadcast of the KFC Segment should fall within the provisions of paragraph 10 of Chapter 9 of the TV Advertising Code. There is no dispute between the CA and TVB that the KFC Segment complied with paragraphs 10(b) ‑ (d) of Chapter 9 of the TV Advertising Code, in that:
44.However, for the KFC Segment to fall within the exception provided in paragraph 10 of Chapter 9 of the TV Advertising Code, it must also be “clearly justified editorially”, “not obtrusive to viewing pleasure” and “not gratuitous” within the meaning of Paragraph 10(a). 45.Initially, the CA received 13 public complaints about the TV Awards Presentation. Subsequently, the CA received one further public complaint about the original broadcast of the TV Awards Presentation on 13 December 2015 and one further complaint about the re-run of the TV Awards Presentation, which was broadcast on 9 February 2016. The complaints about the TV Awards Presentation necessitated the initiation of the complaint handling procedures. 46.The preliminary view of the CA was that the substance of the complaints was not trivial or frivolous. Accordingly, in accordance with section 11(1) of the BMPO, the complaints were referred to the BCC. 47.Thereafter, there were exchanges of correspondences and submissions between BCC and TVB, in which the complaints were conveyed to TVB and was invited to make, and it did later provide, representations regarding the complaints. 48.In particular, TVB provided its written representations by a letter dated 1 February 2016 (“the KFC Initial Representations”). 49.The KFC Initial Representations focused on the duration of the exposure of KFC’s products and argued that such exposure was “brief and subtle” (paragraph 4). TVB claimed that the exposure was “necessary” and that there was no “obtrusion on viewing pleasure”. TVB also set out its general dissatisfaction with the rules on product sponsorship in Hong Kong which it considered to be out of step with international standards. 50.On 30 March 2016, after consideration of the KFC Initial Representations, the CA sent TVB its provisional findings (“the KFC Provisional Findings”). The CA found provisionally that TVB was in breach of the Relevant Paragraphs. In summary, the KFC Provisional Findings were that:
51.The CA emphasised that TVB had repeatedly breached the provisions governing indirect advertising and product and service sponsorship and the CA had repeatedly reminded TVB that indirect advertising was strictly prohibited under the TV Programme Code. The CA explained that it was minded to impose a financial penalty of $150,000 on TVB and it invited TVB to provide further written or oral representations. 52.The solicitors for TVB made further representations to the CA in a letter dated 29 April 2016 (“the KFC Further Representations”). 53.It is the CA’s position that TVB did not in these representations put forward any substantive editorial justification for the KFC Segment, or explain how it complied with Paragraph 10(a)[13]. 54.After considering the KFC Further Representations, the CA issued its final decision on 24 May 2016 (ie, the KFC Final Decision). The CA found that TVB breached the Relevant Paragraphs (ie, paragraph 1 of Chapter 11 of the TV Programme Code and Paragraph 10(a)). The CA imposed a financial penalty of $150,000 on TVB for the breach. The CA set out in six pages its findings and responded to the position that had been taken by TVB in the KFC Further Representations. 55.On 22 June 2016 TVB filed an appeal to the CEIC under section 34 of the BO (ie, the Appeal Proceedings), which has been stayed in light of the KFC Judicial Review. B4. The Scoop Final Decision 56.The Scoop Final Decision arises from the CA’s consideration of public complaints against several episodes of the television programme “Scoop” broadcast by TVB on its “Jade” Channel from 7:30pm to 8:00pm during the period from 15 March 2016 to 18 May 2016 and the programme “Extra” broadcast on the same channel from 12:00am to 12:15am on 26 April 2016. In total, 17 episodes of “Scoop” / “Extra” in this period contained segments which featured myTV SUPER. In 13 episodes, myTV SUPER was identified as either the only product sponsor or one of the product sponsors of the programme. 57.“Scoop” is an infotainment programme covering both social issues and showbiz gossip. “Extra” is an entertainment programme featuring only showbiz gossip. The CA received seven complaints from members of the public regarding the exposure of myTV SUPER within various episodes of “Scoop” and one public complaint about an episode of “Extra”. 58.The CA considered all of the episodes in relation to which complaints were made. In the 19 April Episode of “Scoop”, there was a presentation of a prize to the 800,000th subscriber of HKBN, which is a business partner of myTV SUPER. The programme hostess made favourable remarks about myTV SUPER. A HKBN staff member was seen holding a placard bearing the logo of HKBN with congratulatory remarks. When the two female artistes and the prize winning customer of HKBN chatted about the TV programmes they were watching, the female artiste briefly talked about the upcoming programmes of myTV SUPER that she was most looking forward to watching. In the 18 May Episode of “Scoop”, a female artiste mentioned the name of myTV SUPER and talked about how she downloaded the myTV SUPER mobile app on her phone, followed by shots of a screen of a mobile phone showing the icon and user interface of the myTV SUPER mobile app, and trailers for a particular drama to be shown on myTV SUPER. The male host also invited viewers to download the myTV SUPER app at any time in the voice-over. For convenience, the above-mentioned segments in these two episodes are called collectively the “Subject Scoop Segments”. 59.The CA was of the preliminary view that the substance of the complaints was not trivial or frivolous. Accordingly, in accordance with section 11(1) of the BMPO, the complaints were referred to the BCC. 60.Thereafter, there were exchanges of correspondences and submissions between the BCC and TVB, in which the complaints were conveyed to TVB and TVB was invited to make, and it did later provide, representations regarding the complaints. 61.TVB provided its written representations by a letter dated 1 July 2016 (“the Scoop Initial Representations”). 62.After carefully considering the Scoop Initial Representations, the BCC made its recommendations to the CA. 63.On 28 September 2016, the CA sent TVB its provisional findings (“the Scoop Provisional Findings”). The CA found provisionally that TVB was in breach of the Relevant Paragraphs in respect of the 19 April Episode and the 18 May Episode (collectively “the Subject Scoop Episodes”). The CA explained the considerations which had led it to the Scoop Provisional Findings including that:
64.Accordingly, the CA explained that it was minded to warn TVB to observe more closely paragraph 1 of Chapter 11 of the TV Programme Code and Paragraph 10(a) (ie, the Relevant Paragraphs). The CA gave TVB a further opportunity to provide written or oral representations. 65.The solicitors for TVB made further representations to the CA by their letter dated 18 October 2016 (“the Scoop Further Representations”). 66.It is the CA’s position that TVB did not seek to put forward any substantive editorial justification for the exposure of myTV SUPER in the Subject Scoop Episodes, or explain how it considered that it had complied with Paragraph 10(a)[14]. 67.After considering the Scoop Further Representations, the CA issued its final decision on 22 November 2016 (ie, the Scoop Final Decision). The CA found that TVB had breached the Relevant Paragraphs. The CA warned TVB to observe more closely the relevant provisions of the Codes. The CA further set out eight pages of analysis explaining its approach and responding to the position that had been taken by TVB in the Scoop Further Representations. 68.It should also be noted for completeness that a re-run of the Subject Scoop Episodes was also shown on TVB Network Vision Limited (“TVBN”). The CA and TVBN then exchanged correspondence concerning the re-run. The CA reached the same findings that the Subject Scoop Episodes had breached the Relevant Paragraphs. By way of sanction, the CA warned TVBN to observe more closely the relevant provisions of the Codes. TVBN appears to have accepted this decision and did not appeal or challenge it. 69.Later, TVB respectively took out these judicial review applications challenging the KFC Final Decision and the Scoop Final Decision (collectively “the Decisions”). C. THESE JUDICIAL REVIEWS 70.As mentioned above, TVB raises a number of grounds challenging the Decisions. I will deal with them in the order as advanced by TVB at the hearing, starting with Ground 2 first. C1. Ground 2 71.Under this ground, TVB says the Relevant Paragraphs amount to an unlawful infringement of TVB’s right to freedom of speech and free expression protected under BOR16(2), BL27 and BL39[15]. For convenience, I would generally refer these rights collectively as the right to freedom of expression. 72.BOR16 relevantly provides as follows:
73.It is common ground that the right to freedom of expression under BOR16 (and BL27) is not an absolute right and may be subject to lawful restriction if it satisfies (a) the prescribed by law requirement; and (b) the proportionality requirement[16]. 74.Mr Chan for the CA has fairly accepted that BOR16 right is engaged in the present case vis-à-vis the Relevant Paragraphs. 75.At the same time, Mr McCoy also has rightly accepted that TVB as a FTA Licence holder is and should be subject to regulation, and that the CA has the power to so regulate. He also accepts that TVB does not have the right to broadcast anything it likes. Mr McCoy therefore has made it clear that TVB accepts that paragraphs 10(b) - (d) of Chapter 9 of the TV Advertising Code are constitutionally compliant. However, he says the Relevant Paragraphs are not as it cannot satisfy the prescribed by law requirement or the proportionality requirement. 76.Mr McCoy submits that the Relevant Paragraphs do not comply with prescribed by law requirement for the following reasons. 77.First, Mr McCoy says the criteria (“the Criteria”) set out under Paragraph 10(a), namely the advertisement permitted to be placed within a programme has to be “clearly editorially justified”, “not obtrusive to viewing pleasure” and “not gratuitous”, are all matters that by their own nature and meaning predominantly subjective and conceptually vague. They are not capable of having well defined objective meaning. In the premises, they lack the legal certainty as required under the prescribed by law test. 78.Counsel further says this is indeed buttressed by the CA’s own statement in evidence that, in applying the Codes, it takes into account changing public expectations[17]. This shows that the benchmark is not fixed by any written rules, but draft with currents of public opinions, as observed by the CA. It is all subject to the subjective standards adopted by the CA, who as an authority effectively acts as a “pleasure police” or “pleasure adjudicator”. It amounts to a changing goal post or standard, which clearly cannot satisfy the legal certainty requirement. 79.Second, paragraph 1 of Chapter 11 of the TV Programme Code states that its underlying rationale is “that viewers should not be confused as to whether they are watching a programme or a paid advertisement”. However, Paragraph 10(a), by contrast, demands subtlety and understatedness in indirect advertising, as that must not be “gratuitous” or so unsubtle as to be “obstructive to viewing pleasure”. 80.These two provisions are therefore in tension and indeed pulling at different directions, leaving broadcasters to walk the tightrope between them. They similarly cannot meet the legal certainty required under the prescribed by law test. 81.With respect, I do not agree. 82.Most recently, the Court of Appeal in Chee Fee Ming has reiterated again that to satisfy the prescribed by law test, the degree of precision required to achieve the necessary legal of certainty and foreseeability is flexible and contextually based. It does not require absolute precision or certainty, and the ultimate question is whether the provision under challenge is able to enunciate some boundaries which create an area of risk to guide conducts of the affected individual, with legal advice if necessary. Thus, Lam VP observed at [52] - [57] as follows[18]:
83.Further, Ribeiro PJ in HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 at [78] and [91] also recognised that language has its inherent ambiguities and emphasized that in such an exercise to inquire as to whether the prescribed by law requirement is satisfied, the proper approach is to ascertain the meaning of a provision in light of its purpose and context, and to adopt a rational and common approach. 84.Bearing these principles in mind, for the following reasons, I agree with Mr Chan for the CA that Paragraph 10(a) clearly meets the prescribed by law test. 85.As submitted by Mr Chan, the Criteria are couched in plain English words which are to be understood objectively in the proper context of the Codes relating to advertising materials. In relation to this, it is pertinent to note that:
86.When read objectively with the above general context and other paragraphs of the Codes, it is reasonably clear that the Criteria will be met if the reference or remark to, or the showing of, the sponsored material[19] within a programme can be regarded objectively as a natural or incidental one, which is not prominent and is consistent with the programme content itself. This also accords with the natural and ordinary meanings of those words. 87.Further, a licensee is also able to ascertain the above meaning of the Criteria by reference to[20]:
88.Insofar as paragraph 1 of Chapter 11 of the TV Programme Code is concerned, the words there are plain and clear, and a licensee cannot seriously suggest that it will not be able to ascertain a sufficiently clear meaning from it to guide its own conduct. 89.There is also no merit in TVB’s contention that the Relevant Paragraphs lack the necessary certainty as they are contradictory to each other, since Paragraph 10(a) is in direct opposite to the principle stated in paragraph 1 of Chapter 11 of the TV Programme Code. 90.As submitted by Mr Chan, there is no inconsistency between paragraph 1 of Chapter 11 of the TV Programme Code and Paragraph 10(b). Paragraph 1 relates to the general principle on separation of advertisement and programme, which is to facilitate and protect programme integrity and hence viewing pleasure in the interest of the public[21]. Paragraph 10(b) on the other hand relates to an exception, which exception has already been recognised under paragraph 3 of Chapter 11 of the TV Programme Code. Given the above meaning of the Criteria to qualify for this exception, Paragraph 10(a) is consistent with the policy to protect programme integrity and viewing pleasure stated under paragraph 1 of Chapter 11 of the TV Programme Code. 91.Once understood this way, it is clear to me that both Relevant Paragraphs have a sufficiently and clearly formulated core or meaning to enable a licensee, with legal advice if necessary, to regulate its conduct so as to avoid liability for breaching either of them. 92.I therefore reject TVB’s contention that the Relevant Paragraphs fail to meet the prescribed by law requirement. 93.Mr McCoy next submits that the Relevant Paragraphs also fall foul of the proportionality requirement. His submissions run as follows. 94.It is now firmly established that the proportionality test involves the following four-step enquiry[22]:
95.Mr McCoy says in order to satisfy the proportionality test, the Relevant Paragraphs have to pursue a legitimate aim that falls within those matters expressly set out under BOR16(3), which are respectively (a) for the respect of the rights or reputations of others, or (b) for the protection of national security or of public order (ordre public), or of public health or morals. 96.In this respect, it is the CA’s position that the restrictions provided under the Relevant Paragraphs are to pursue the legitimate aims of consumer protection and protection of viewers’ interests:
97.The CA submits that these aims fall within BOR16(3)(a) as they are in relation to the protection of the rights of others. 98.Mr McCoy however says the purported aims are not legitimate for the purpose of BOR16(3). The “respect for rights of others” listed under BOR16(3)(a) has been held to apply to restrictions on speech aimed at protecting others’ rights to privacy, reputation, a fair trial, or religious freedom. They therefore do not cover the CA’s purported aim. 99.Further, counsel has also submitted at the hearing that the grounds respectively set out under BOR16(3)(a) and (b) must be read together and consistently. In other words, he says on a proper construction of BOR16(3), the “respect for the rights of others” must be something in relation to some rights or matters that acquire similar importance or significance as that of the protection of national security, ordre public, public health or morals. 100.In particular, Mr McCoy says the authorities show that “rights of others” include ICCPR rights, together with other rights that are (a) supplied by domestic law, and (b) indispensable imperatives. See: R (ProLife Alliance) v British Broadcasting Corp [2004] 1 AC 185 at [123]; Chassgnou v France (1999) 29 EHRR 615, at [113]; Connolly v DPP [2008] 1 WLR 276 at [23] - [28]; and R (on the Application of Boots Management Services Ltd) v The Central Arbitration Committee [2014] EWHC 65 (Admin) at [30]. 101.In the written reply submissions, Mr McCoy then clarifies TVB accepts that consumer protection is a legitimate aim. It has also never disputed the fact that measures protecting the public from subliminal advertising or other perfidious, fraudulent, false or defamatory advertising tactics can be readily justified within BOR16(3). By itself TVB has no objection to the requirement that placement advertising be clearly identifiable as such. 102.Counsel however submits that the Criteria under Paragraph 10(a) are more to deal with the aim of protecting viewing pleasure and programme integrity, as they seek to ensure that any in‑programme indirect advertising has to be done subtly and incidentally. In other words, without noticing it. However, viewing pleasure or programme quality is a highly subjective and personal matter, any right to it can hardly be regarded as such important right (ie, indispensable imperatives) to justify encroachment of the fundamental right freedom of expression as anticipated under BOR16(3)(a). 103.With respect, I am unable to accept these submissions:
104.Further, as submitted by Mr Chan, R (ProLife) indeed supports the proposition that right of television viewers not to be subjected to unnecessary materials when viewing a programme is recognised as a “right of the others” under the Article 10 of the European Convention on Human Rights (“ECHR”) (equivalent of BOR16). See the speeches of:
105.This shows that protection of viewing pleasure and programme integrity can be recognised as a right of the others under BOR16(3)(a) to justify limitation of the freedom of expression. 106.Further, as pointed out by Mr Chan, a FTA TV service has important social functions. As Condition 17.1 of the FTA Licence provides:
107.At the same time, the CA recognises the commercial interest of television broadcasters like TVB to enhance advertising revenue. Chapter 11 of the TV Programme Code and Chapter 9 of the TV Advertising Code are therefore an attempt to strike a balance between:
108.I will therefore accept that the Relevant Paragraphs pursue the legitimate aims of consumer protection and protection of viewers’ interests. 109.TVB then argues that the restrictive measure under the Relevant Paragraphs does not rationally connect to the legitimate aims or it is not necessary (and thus is disproportionate) to connect to them as:
110.In relation to [109(1)] above, TVB further points out that paragraph 20 of Chapter 9 of the TV Advertising Code provides an exception in relation to “Acquired Programmes”. It states:
111.It also refers to paragraph 2 of Chapter 8 of the TV Advertising Code which provides:
112.Hence, if such a channel is directly re-broadcast on FTA television, the CA deems it sufficient protection for viewers that (per section 2A of Chapter section 8):
113.Indeed, as can be seen at paragraph 6 of Chapter 3 of the TV Advertising Code, such foreign channels may be re-broadcast in Hong Kong notwithstanding that they deviate from the general rule that advertising material should be clearly identifiable as an advertisement. Distinctions must be maintained between advertisements and programmes. 114.TVB emphasizes that, as a matter of fact, foreign content is very frequently re‑broadcast in Hong Kong with product placement. 115.Mr McCoy therefore submits that the above different treatment of foreign content is important in the context of necessity and proportionality, for at least three reasons:
116.With respect, I am also not persuaded by these submissions. 117.In terms of rational connection, with the clear meaning of paragraph 1 of Chapter 11 of the TV Programme Code and the meaning of the Criteria understood as above, plainly, these restrictions are connected to the aims of protecting consumer interests and viewing pleasure. 118.The distinction drawn between locally-made content and foreign acquired content to say that there is no rational connection between the Relevant Paragraphs and the legitimate aims is more apparent than real. It ignores the fact that, as expressly provided in those relevant provisions, the existing exceptions for foreign acquired content are justified by the lack of editorial control of the licensee over such content and are only devised to address the practical difficulty in editing foreign content. As highlighted by Mr Chan, the exceptions allowed are limited in scope to reflect these practical difficulties. Hence:
119.TVB has urged the court to adopt a stringent scrutiny in assessing whether it is proportional for the measure in Paragraph 10(a) to achieve the legitimate aims. This is so as it relates to infringement of a fundamental right not by legislations enacted by a legislature with a democratic mandate[27]. 120.In this respect, Mr Chan has rightly reminded the court that in considering the proportionality of the restriction imposed by a regulatory regime on television broadcast, it is necessary to bear in mind its unique nature and the special duties and responsibilities imposed on a television broadcaster. This is particularly so in the context of FTA broadcast given its pervasiveness. 121.Hence, in considering the proportionality of the restriction imposed by a regulatory regime on television broadcasting, it is necessary to bear in mind its unique nature and the special duties and responsibilities imposed on a television broadcaster. Article 10(1) of the ECHR expressly states that the protection of the right to freedom of expression does not prevent States from requiring the licensing of broadcasting, television or cinema enterprise. While this provision does not give the States a carte blanche power to regulate broadcasting and television, it does acknowledge that the limited resources of television spectrum and frequencies and the penetration of television broadcasting requires regulation in a way distinct from other sectors of the media. 122.Indeed, BOR16(3) refers to “special duties and responsibilities” in the exercise of the right to freedom of expression, a unique phrase in the restriction clauses in the BOR. This clause is an acknowledgement of the powerful influence of the media, which calls for special duties and responsibilities to come with such power. This is particularly pertinent when FTA TV service is involved, given its high household penetration rate in Hong Kong. As explained by Manfred Nowak, this statement was intended to “offer States parties an express tool to counter abuse of power by the modern mass media” and to “reinforc[e] the obligation of States to ensure that interference did not take place at the horizontal level”[28]. The object of this statement was indeed the mass media, as the travaux preparatoires demonstrate:
123.Further, it has been held that less justification is required for restrictions on the right to freedom of speech where only commercial speech is at stake. In other words, such restrictions are more easily justifiable than restrictions on more serious aspects of speech, such as political speech:
124.Bearing these approaches in mind, whether the restrictions imposed under Relevant Paragraphs are proportionate to achieve the legitimate aims of protection of consumers and the viewing public must be considered against the following contexts:
125.Once so considered, and affording a margin of appreciation to the CA, I accept Mr Chan’s submissions it is clear that the restrictions are proportionate measures:
126.For all these reasons, I agree that the restrictions imposed under the Relevant Paragraphs also satisfy the proportionality test. 127.TVB then further submits that the Relevant Paragraphs are ultra vires. The arguments as advanced by Mr Parker can be summarized as follows. 128.First, counsel says the CA has the power to issue a Code of Practice under section 3(1) of the BO, which relevantly provides as follows:
129.Hence, under section 3(1), the CA can only issue a Code of Practice which is (a) in respect of any requirements that are (b) imposed under the BO, or (c) in respect of licence conditions. 130.However, the Relevant Paragraphs are not in relation to any requirements imposed under the BO, nor are they related to licence conditions. In the premises, the CA does not have the statutory power to issue the same. They are therefore ultra vires. 131.I am unable to accept the contention. 132.As submitted by the CA, the Codes are issued under section 9(1)(d) of the BMPO, which provides the CA shall have the functions:
133.The CA further submits that section 3(1) of the BO provides that that CA may approve the issue of Code of Practice “in respect of any requirements ... in respect of licence conditions”. In this respect, the applicability of the BMPO is part of the conditions of TVB’s FTA Licence:
134.In short, TVB’s FTA Licence is subject to the provisions in the BMPO. Under section 9(1)(d) of the BMPO, the CA is clearly entitled to “secure proper standards of television and sound broadcasting with regard to both programme content (including advertisements) and technical performance of broadcasts”. This brings the CA’s power to issue the Codes within the “in respect of licence conditions” limb in section 3(1) of the BO. 135.Mr Parker however submits that the reliance on Conditions 2.2 and 12 of the FTA Licence is impermissible. This is so as if section 3(1) of the BO has expressly provided that the CA has power to issue a Code of Practice in relation to a requirement imposed under the BO itself, it must be read objectively to mean that it excludes any reference to other ordinances to enable the CA to issue a code. The CA cannot get around it by way of the back door through a condition in the licence. 136.I do not agree. Section 3 does not provide that the CA can issue a Code of Practice only under a requirement imposed under the BO. Further, it has instead expressly provided that the CA can issue a Code of Practice in respect of requirements under licence conditions. It cannot be read to be objectively intended to exclude any references to other ordinances which have been set out under any licence conditions. 137.Further, Mr Parker has drawn the court’s attention to the Gazette Notice[31] which published the approval of the revisions of Chapter 11 of the TV Programme Code and Chapters 2 and 9 of the TV Advertising Code by the CA’s predecessor. Counsel has pointed out that it only made a specific reference that the Notice was issued pursuant to section 3(2) of the BO, and a reference to section 23(2)(e) of the BO[32], without any reference to the BMPO[33]. This shows that the Codes (or at the least the Chapters which the Relevant Paragraphs are found) have nothing to do with the BMPO. 138.With respect, there is nothing in this submission. Section 3(2) of the BO relates to an issue of a Code of Practice under section 3(1) which, as explained above, gives power to the CA to issue and approve a Code of Practice in respect of licence conditions. 139.I therefore find no merit in this contention. 140.Mr Parker then secondly contends that the Relevant Paragraphs are ultra vires as the CA is not authorised under section 3(1) of the BO to issue a Code of Practice that restricts fundamental rights. Mr Parker’s submissions can be summarized as follows. 141.The principle of legality requires that legislation will not be interpreted as restricting fundamental rights at all unless it has provided for that in express words, or by necessary implication. In this respect, Mr Parker has drawn the court’s attention to section 23(1) of the BO which bans the broadcasting of subliminal messages, and sections 11 and 12 of its Schedule 4 which place restrictions on FTA TV advertising. Hence, the legislature does use express words in the BO to give power to the CA to restrict certain rights if it so intends. 142.There are however no express provisions under the BO, including section 3(1), or licensing conditions which provide for the CA to issue Code of Practice that would restrict fundamental rights. The CA therefore cannot issue Code of Practice which seek to restrict such rights in the absence of clear and express words in the enabling statute allowing it to do so. 143.I am similarly not convinced. 144.Sections 4(1), (2) and (4)(d) of the CAO provide relevantly as follows:
145.These provisions therefore provide and empower the CA to perform all the functions conferred to it under the BO and the BMPO, so long as it acts consistently with the provisions of the BOR. In this respect, BOR16 provides for the circumstances when the right to freedom of expression can be restricted. 146.In the premises, the CA has the statutory authority to issue the Relevant Paragraphs so long as it acts consistently with BOR16. I have for the above reasons already concluded that the Relevant Paragraphs are BOR16 compliant. 147.For all these reasons, I also reject the ultra vires arguments. 148.In the premises, the Relevant Paragraphs are BOR16, BL27 and BL39 compliant and not ultra vires. Ground 2 therefore fails. C2. Ground 3 149.Under this ground, TVB submits that the CA erred in law in finding that the KFC Segment and Subject Scoop Segments constituted indirect advertising within the meaning of paragraph 1 of Chapter 11 of the TV Programme Code. TVB contends that paragraph 1 of Chapter 11 was not triggered and not breached, and instead it was Paragraph 10(a) which was engaged, and any breach must be found under it. 150.This is so, says TVB, as paragraph 1 of Chapter 11 of the TV Programme Code effectively outlaw all forms of product placement and programme sponsorship. On the other hand, paragraph 3 of the same Chapter provides that instances of product or programme sponsorship will be governed by paragraph 10 of Chapter 9 of the TV Advertising Code. Hence, the subject matter of the complaints relating to the KFC Case and the Scoop Case should only come to be determined within paragraph 10 of Chapter 9 of the TV Advertising Code but not paragraph 1 of Chapter 11 of the TV Programme Code. 151.The underlying plank of these contentions is effectively TVB’s submission that paragraph 1 of Chapter 11 of the TV Programme Code and Paragraph 10(a) on a proper construction are mutually exclusive and thus it could not be found to be in breach of both by the CA. 152.In its written reply, TVB has sought to further underline the conceptual inconsistency between these two provisions by saying it is impossible to reconcile the dichotomy between (a) on the one hand allowing product placement, where the whole point is to draw the sponsored product to the attention of the viewers, and (b) on the other hand seeking to so called protect viewing pleasure by permitting “flash exposures” of the product. 153.This is the same argument which I have considered above at [89] - [90], and for the same reasons, I would also reject it. In this respect, the two provisions are there precisely to strike a balance between the recognised need to allow a licensee to air advertisement to generate revenues and at the same time protect as practically as possible viewing pleasure. There is no irreconcilable dichotomy as submitted by TVB. 154.Ground 3 therefore also fails. C3. Scoop Ground 4 155.This ground can be dealt with quickly. 156.Under this ground, TVB submits that the Scoop Final Decision is tainted with an error of law, as the references to myTV SUPER in the Subject Scoop Episodes do not amount to “advertisement” or “advertising materials” under the Codes as it is excluded under paragraph 2 of Chapter 2 of the TV Advertising Code. 157.Paragraph 2 of Chapter 2 of the TV Advertising Code provides relevantly as follows:
158.TVB submits that, notwithstanding that myTV SUPER is owned by TVB.com Ltd:
159.In support, TVB emphasizes that (a) myTV SUPER has five channels which are also shown on TVB’s FTA TV service, (b) TVB.com Ltd is wholly owned and controlled by TVB, and (c) the two share the same brand and logo. 160.In the circumstances, TVB further says in coming to the Scoop Final Decision, the CA:
161.The contention is without merit. 162.First, the following facts show that myTV SUPER and TVB are clearly different entities for the purpose of FTA TV service regulations[34]:
163.In the premises, in light of these facts, TVB’s reliance on paragraph 2(a) of Chapter 2 of the TV Advertising Code is clearly misplaced. That sub-paragraph, which is clearly excepted from the definition of advertising material, concerns the “identification” of a station, channel or programme service. This will include, for example, occasional segments in a TV broadcast telling viewers which station or channel they are watching, segments telling viewers which programme will be broadcast next, the station or channel logo that constantly appears at the top right-hand corner of the TV screen, and the programme name that sometimes appears at the top left-hand corner of the TV screen. Their function is to inform viewers which station, channel or programme they are (or will be) watching. The meaning of paragraph 2(a) is made even clearer by the Chinese version of the TV Advertising Code, which uses the words “識別訊號片” (informally translated as “identification signal footage”). Clearly, the Subject Scoop Segment promoting myTV SUPER’s products and services are not for such an identification purpose. 164.Second, in relation to TVB’s reliance on paragraph 2(c) of Chapter 2 of the TV Advertising Code, it principal contention is that myTV SUPER’s OTT service should be equated with or included as part of “the licensee’s [ie, TVB’s] station”. 165.However, as mentioned above, myTV SUPER is provided by a separate third party company, not a FTA broadcaster and not a licensee of any kind under the BO, and that it provides a lot of channels and programmes which are not available on TVB’s FTA service. 166.Moreover, the CA has made it clear in the Scoop Final Decision that the materials which are said to have breached Paragraph 10(a) relate to the promotion of myTV SUPER’s user interface and functions as a provider of OTT media, but not the promotion of TVB’s channels and programmes[35]. 167.With these fundamental differences between myTV SUPER and TVB, it is clearly right for the CA to conclude that myTV SUPER’s OTT service is not provided by TVB (but by a third party non‑licensee called TVB.com) and does not form part of its FTA TV service. The promotion of myTV SUPER by TVB is thus not promotion of the licensee’s station, but of a service provided by another organisation. 168.I therefore also dismiss Scoop Ground 4. C4. KFC Ground 4 and Scoop Ground 5 169.These two grounds are advanced together by Mr McCoy. 170.Under these grounds, TVB first says the decisions reached in relation to the KFC Case and the Scoop Case are irrational. It further says the decisions are in any event not supported by adequate reasons. 171.I will deal with these arguments in turn.
172.TVB has advanced two arguments under this complaint. 173.First, TVB says in the KFC Final Decision and the Scoop Final Decision, the CA found that TVB was in breach of both paragraph 1 of Chapter 11 of the TV Programme Code and Paragraph 10(a) (ie, the Relevant Paragraphs”). The conclusions are however internally inconsistent. This argument is again premised on TVB’s earlier contentions as summarized at [151] - [152] above that these two provisions are internally inconsistent and pulling towards different directions. 174.For the same reasons given at [153] above, I will reject this argument. The decisions that TVB was in breach of both paragraphs only mean that TVB fell foul of paragraph 1 of Chapter 11 of the TV Programme Code and (and also as) it did not come within the exception provided under Paragraph 10(a). There is no inconsistency in these conclusions. 175.Second, TVB says the Decisions also sit obviously inconsistently with the CA’s earlier other decisions in finding no breach[36]. 176.To illustrate the inconsistent findings, TVB relies heavily and principally on the CA’s decision made in relation to what is conveniently called the “Pizza Hut Case”. In gist, in the Pizza Hut Case, the CA received complaints about TVB placing advertisement or advertising material relating to Pizza Hut within its programme of the 48th Anniversary Gala broadcast on 19 November 2015. The material facts of the Pizza Hut Case now relied on by TVB are as follows. 177.On 6 April 2016, the CA wrote to inform TVB that it had received one complaint in relation to its 48th Anniversary Gala, which had been broadcast six months earlier, on 19 November 2015 (Jade Channel, 20:00 ‑ 22:30) (“the TVB 48th Anniversary Gala”). 178.During a segment of the TVB 48th Anniversary Gala, a courtroom skit had been performed involving the delivery of pizza in a box marked with the “Pizza Hut” logo to a “judge”. The “judge” held up the open box of pizza, smelt the pizza and explained “咁大咁靚嘅pizza，好香喎，我好冧喎” (which translates approximately as: “the pizza is so big and nice, it smells so good, I love it very much”). The pizza was shared around with other artistes, playing as jurors, who in turn cheered and applauded. Medium shots again showed the branded Pizza Hut boxes, the exposure of which lasted approximately 30 seconds. 179.The CA further stated in its letter of 6 April 2016 that it was considering whether the show had contravened Paragraph 10(a) and / or paragraph 1 of Chapter 11 of the TV Programme Code, ie, the very same provisions found to be breached in the KFC Final Decision. 180.TVB responded to the complaint on 14 April 2016. 181.On 24 May 2016, the CA informed TVB that it had concluded that the complaint was unjustified and that no further action was to be taken against the TVB (“the Pizza Hut Decision”). In coming to that decision, the CA considered, inter alia, that the TVB 48th Anniversary Gala was a live show and in view of the comical nature of the skit, the portrayal of court officers bringing out the pizza and the jurors eating pizza in court was not unacceptable; and that the judge making complimentary remarks of the pizza was brief and general, and was not unacceptable in the context of slapstick comedy. 182.It is TVB’s contention that the facts and materials relating to the KFC Case are clearly similar to that of the Pizza Hut Case, and yet the CA had reached an exact opposite conclusion. In particular, TVB emphasized that in the Pizza Hut Case, the actual length and duration of showing the “products” in the programme is longer than that in the KFC Case. This further shows that the CA is acting arbitrarily and subjectively in reaching the KFC Final Decision. 183.I am not persuaded by these submissions. 184.First, it is obvious that each case turns on its own facts and circumstances. Given the meaning of the Criteria under Paragraph 10(a) as explained above, as rightly submitted by Mr Chan, it is open to the CA to consider the facts of each case to see if the Criteria are satisfied by reference to the non-exhaustive factors such as (a) the nature and context of the individual programmes under complaint, (b) the forms, extent and prominence of the exposure and use of the products or services within each programme, and (c) the length of time of the exposure, to determine whether such exposure or use was clearly justified editorially, not obtrusive to viewing pleasure, and not gratuitous. 185.As such, I agree that it is unhelpful for TVB to forensically compare a selection of 20 previous decisions (out of 874 separate cases relating to indirect advertising) handled by the CA[37]. In the premises, TVB’s general reference to the fact that the CA has had made different conclusions relating to various complaints about indirect advertising over the years for different programmes per se does not even start to support a case of irrationality vis-a-vis the KFC Final Decision and the Scoop Final Decision. 186.Second, even in relation to the Pizza Hut Case, as explained by the CA, it has the following basis to distinguish it from the KFC Case[38]:
187.By contrast, in “TV Awards Presentation 2015” (that the KFC Final Decision is concerned with), there was a sharp contrast between the dressed-up artistes (in formal dress) and their consumption of fried chicken by hand (without a table or even utensils) in the context of the award presentation ceremony. There were also complimentary remarks made by the host on the food, and continuous and gratuitous medium to close-up shots focusing on the brand logo of the sponsor on the food boxes. 188.In my view, given the various factors I mentioned at [184] above, in determining whether the Criteria under Paragraph 10(a) are satisfied in the Pizza Hut Case and the KFC Case, it is entirely open and reasonable for the CA to look at and take into account these differences between the two cases, in particular the incidental and brief nature of the exposure of the Pizza Hut logo in the former but the focused and extended close-up exposure of the KFC logo in the latter, in arriving at the respective conclusions. In other words, after taking these matters into account, it is not Wednesbury unreasonable or irrational for the CA to reach different conclusions in the Pizza Hut Decision (in finding no breach of Paragraph 10(a)) and the KFC Final Decision (in finding a breach)[39]. 189.In relation to the Scoop Final Decision, TVB submits that it is also irrational as the CA had on the one hand concluded that some of the episodes complained of were found not be in breach of the Codes for indirect advertising, while the other two (ie, the Subject Scoop Episodes) were found to be so, when there were references to myTV SUPER services in all of these episodes. 190.Again, I agree with Mr Chan’s following submissions that TVB’s complaint that the Scoop Final Decision consists of rationally irreconcilable inculpatory and exculpatory aspects is without merits:
191.I therefore reject the irrationality complaints made under these grounds.
192.The general principles concerning a reasons challenge are not controversial. Relevantly, what will amount to adequate reasons will depend upon the context and circumstances: Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-1998) 1 HKCFAR 279 at paragraph 39. The reasons given should show that the tribunal has address the substantial issues before it and show why it has come to its decision: ibid at paragraph 42. 193.Further, the expected standards of reasons are also set out at paragraph 30 of Smart Gain Investment v Town Planning Board (HCAL 12/2006 and 12/2007, 6 November 2007, A Cheung J (as he then was)). In particular, it is said that decision letters can afford to be more straightforward as they are addressed to parties well aware of the issue involved and the arguments advanced:
194.Bearing these principles in mind, the complaints about lack of adequate reasons in the present challenges can be said to be startling. This is so as the CA has indeed sought to provide lengthy reasons for the Decisions in the respective letters sent to TVB. 195.In the KFC provision decision dated 30 March 2016 (“the KFC Provisional Decision”), the CA has provided the following reasons in it:
196.Further, under the heading of “Proposed Sanction”, the CA stated in the KFC Provisional Decision that:
197.On 24 May 2016, the CA issued the KFC Final Decision. At paragraph 2 of the KFC Final Decision, the CA stated that it decided to “uphold the provisional findings as set out in its letter dated 30 March 2016”. 198.Similarly, in the Scoop Provisional Decision, the CA set out the following:
199.Subsequently, the Scoop Final Decision states that it “decided to uphold the provisional findings, as set out in its letter dated 28 September 2016... that the complaints regarding the two editions of “Scoop” broadcast on 19 April 2016 and 18 May 2016 were justified and that TVB had breached paragraph 1 of Chapter 11 of the [TV Programme Code] and paragraph 10(a) of Chapter 9 of the [TV Advertising Code]”. 200.Accordingly, the Scoop Final Decision adopts the reasoning in the Scoop Provisional Decision. 201.It is thus quite apparent that the CA has sought to provide detailed reasons for the Decisions. 202.Notwithstanding these, TVB says they do not constitute adequate reasons as it says the CA has failed to explain whether (and if so how) it considered that (a) the advertising material was not recognisably separate from the programme content, (b) viewers would be confused as to whether they were watching a programme or a paid advertisement (which is said to be the underlying rationale for the rule), and (c) the advertising material was not clearly identified. 203.This is particularly so, says TVB, in light of the following representations made by TVB in response to the complaints. 204.In relation to the KFC Case, it is essentially TVB’s representations that the references and use of fried chicken in the TV Awards Presentation was a conscious editorial decision to make it funny and hilarious. This was intended to be a parody. 205.For the Scoop Case, TVB’s position is essentially that myTV SUPER is an integral part of TVB’s domestic FTA TV programme service and the references to it was a legitimate act to inform viewers of the changing television scene brought about by technological advancements. Hence, the exposure of myTV SUPER logo and verbal references to its services were not services pertaining to another licensee. In the premises, they were not editorially unjustified for an infotainment programme[40]. 206.In light of these representations, TVB submits that the CA’s above-mentioned reasons are merely repeating its own assertions that there was a breach. They failed to address TVB’s representations and explain why, despite the expressly stated editorial intention to create a parody, it was still considered by the CA that the placement of the fried chicken in the TV Awards Presentation was not editorially justified, not gratuitous and not obtrusive to viewing pleasure. In other words, TVB was at a loss as to why its representations about the editorial justification behind the “plot” was not accepted. 207.In this respect, Mr McCoy has also drawn my attention to the CA’s evidence in which it says TVB did not put forward any substantial editorial justification for the KFC Segment and for the exposure of myTV SUPER in the Subject Scoop Segment, or to explain why they complied with Paragraph 10(a)[41]. Counsel says in light of TVB’s above-mentioned representations, the CA’s said position must be incorrect. This does not only show that the CA in reaching the KFC Final Decision and the Scoop Final Decision had clearly made a mistake of fact in regarding TVB having failed to put in editorial justifications or explanations, but also supports TVB’s contention that the CA had failed to properly address TVB’s representations. 208.With respect to Mr McCoy, as submitted by Mr Chan, TVB’s contentions are misplaced and missing the point. 209.Given the meaning of the Criteria as explained above, it is objectively and reasonably clear to TVB that what was required for complying with Paragraph 10(a) was editorial justification for the extended and prominent display of the KFC logo and complimentary remarks about the food in the TV Award Presentation, and the extended references to myTV SUPER’s OTT services and platform in an infotainment programme. The fact that the TV Awards Presentation was said to be intended to be funny and a parody has nothing to do with these. Put it the other way round, it has not been objectively explained or justified why it was necessary to have a prominent and extended exposure of the logo of KFC in the TV Awards Presentation for it to be funny and hilarious. 210.Similarly, in relation to the Scoop Case, once the CA had rejected TVB’s primary underlying position that myTV SUPER should be treated as the integral part of TVB’s domestic FTA TV service, the explanation for editorial justification also fell away. 211.Once understood in this way and context, the reasons given by the CA in the KFC Final Decision and the Scoop Final Decision are in my view clearly adequate to enable TVB to understand (even though it may well disagree) why it was held that it was in breach of Paragraph 10(a) for indirect advertising. 212.TVB therefore also fails on these grounds. C5. KFC Ground 5 213.This ground relates solely to the imposition of a financial penalty of $150,000 in the KFC Final Decision. 214.Under section 28(5) of the BO, any penalty awarded must be proportionate and reasonable in relation to the failure or series of failure concerning giving rise to that penalty[42]. TVB says this penalty is disproportionate, in that it is manifestly excessive, and that the CA failed to give adequate reasons for imposing this level of penalty. 215.In substance, TVB complains that the CA has not given proper explanation for this level of penalty. Although the CA appears to have taken into account other past breaches by TVB, it has not listed or identified the cases it had taken into consideration. There was also no reference made to other precedents, whether involving TVB or not. In the premises, the penalty is not proportionate. 216.There is no merit in these complaints. 217.It is well established as a matter of law that questions of penalty are a matter for the decision-maker, and that the Court will intervene only on the ground of Wednesbury unreasonableness: see Au Yeung Kwok Hing v Attorney General CACV 205/1994 (unreported, 7 February 1995) at paragraphs 16 and 31, Lie Han Ji v Registrar of the Hong Kong Institute of Certified Public Accountants CACV 265/2009 (unreported, 9 March 2012) at paragraph 56. 218.To put the debate in proper context, it is pertinent to note that section 28(3) of the BO provides that the financial penalties imposed shall not exceed $200,000 for the first occasion on which a penalty is imposed, $400,000 for the second occasion, and $1,000,000 for any subsequent occasion on which a penalty imposed. 219.Further, it is important to note that prior to the KFC Final Decision, the CA made it clear in a press release dated 3 December 2013 that “the CA will closely monitor further cases of contravention and will consider heavier sanctions for any further breach of the relevant provisions having regard to, among others, the nature and severity of the breach, and the relevant licensee’s past record of non-compliance”[43] (emphasis added). 220.In this respect, as pointed out in the CA’s evidence, from 2010 until May 2016, TVB had indeed been previously found to have breached the relevant provisions of the Codes on 32 occasions. During this period, the CA had imposed financial penalties on six occasions in respect of breaches of provisions on indirect and product sponsorship[44]. 221.At the same time, in imposing the penalty of $150,000 in the KFC Final Decision, the CA have expressly set out its reasons:
222.When these reasons are understood against the background and the press release stated in [219] - [220] above, TVB clearly should have no difficulty in understanding that this level of financial penalty was imposed by reference to (a) the severity of the breach, and (b) the fact that TVB had repeatedly breached the relevant provisions of the Codes.[45] The contention that the CA failed to give adequate reasons for imposing this level of financial penalty must thus be rejected. 223.Further, the $150,000 penalty imposed is even appreciably lower than the maximum financial penalty ($200,000) that can be imposed by the CA for the first time. Bearing in mind the approach set out at [217] above, and given that TVB had in fact been previously fined for six times for its breach of the Codes for indirect advertising, in any view, this penalty cannot be regarded as beyond a reasonable range that an objective reasonable person in the position of the CA would have imposed. The complaint that it is grossly excessive to be irrational in public law sense must be rejected. I therefore also reject KFC Ground 5. C6. Ground 1
224.Under this ground, TVB contends that the statutory scheme under the BO which provides for the CA to make the Decisions and for an appeal from those Decisions to the CEIC does not comply with BOR10, and is thus unconstitutional. 225.BOR10 provides relevantly:
226.TVB says the Decisions involve the determination of “rights and obligations” in a suit at law, but neither the CA nor the CEIC is an independent and impartial tribunal (and judicial review is not curative). In the premises, the scheme underlying the making of the Decision and the Appeal Proceedings are not BOR10 compliant and thus unconstitutional. 227.In support of the contentions, TVB relies heavily on the judgment of G Lam J in Television Broadcast Ltd v Communications Authority and CEIC [2016] 2 HKLRD 41 (“the TVB Competition Case”). 228.On the other hand, Mr Chan and Mr Yu both submit that, on a proper analysis, the Decisions do not involve the determination of rights and obligations in a suit of law and thus BOR10 is not even engaged. In any event, even if BOR10 is engaged, the CA as well as the CEIC are independent and impartial for the purpose of making the Decisions, and alternatively, the availability of the judicial review in the present cases offer a sufficient curative measure to make the system BOR10 complaint. 229.In light of these principal contentions between the parties, it is natural for me to first examine the primary question of whether the Decisions involve the determination of rights and obligations in a suit at law for the purpose of BOR10.
230.In determining whether the Decisions involve determination of “rights and obligations” for the purpose of BOR10, the following applicable principles can be distilled from the wealth of authorities. 231.The words “determination of … rights and obligations in a suit at law” called for a general and generous interpretation. See Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 273 at [24] and [62] ‑ [65] per Ribeiro PJ; TVB Competition Case at [93] and the authorities cited therein. 232.The phrase “rights and obligations in a suit at law” bears the same meaning as “civil rights and obligations” under Article 6 of the ECHR (“ECHR6”). The general inquiry is whether the subject process under challenge involves determination of a serious or genuine dispute of civil right or obligation available within the domestic law of the jurisdiction. See Lam Siu Po, at [62] - [72]; TVB Competition Case at [93]. 233.Whether there is a determination of civil rights, which is an autonomous concept not dependant on domestic classification, is to be determined by the nature of the rights on a case-by-case basis. In other words, BOR10 may be engaged only in relation to some, but not all, the matters dealt with by a particular administrative authority or tribunal. Lam Siu Po, [91]; General Comments No 32, Human Rights Committee, paragraph 16. 234.In determining whether “civil rights and obligations” are involved, the court applies the prominent test to see if the rights and obligations in question are essentially or predominantly private rights in nature. Schouten and Meldrum v The Netherlands (1995) 19 EHRR 432 at [49] ‑ [60]. In this exercise, the court is entitled to look at whether the outcome of the decision under challenge is directly decisive for private rights and obligations that the balance will be tilted in favour of “civil rights and obligations”. A tenuous connection or remote consequences do not suffice. See: Le Compton, Van Leuven and De Meyere v Belgium (1981) 4 EHHR 1 at [47]. 235.Hence:
236.Further, a dispute is “pecuniary” in nature is not necessary sufficient to engage BOR10. The court will still have to examine whether the “pecuniary” obligations involved are ones that existed vis-à-vis the state which are considered as belonging exclusively to the realm of public law and are accordingly not covered by the notion of “civil rights and obligations”. See Shouten and Meldrum, [50]; Pierre-Bloch v France (1988) 26 EHRR 202 [51]; Ferranzi v Italy, [25]. 237.Bearing these principles and approaches in mind, I now turn to look at the parties’ submissions under this issue. 238.Mr McCoy first says that the Decisions clearly involve the determination of TVB’s civil obligations and rights, as they directly decide on the extent of TVB’s right to free expression, and that of the third party content producers and advertisers. 239.With the greatest respect, I am not convinced by this submission. 240.In relation to TVB’s and third party advertisers’ rights to freedom of expression, these rights are by their now nature public law rights, not private law rights. 241.Moreover, as pointed out by Mr Yu, the enforcement action in the regulatory framework[46] underlying the Decisions does not only concern the CA and TVB, but relates to the viewing public interest in controlling or deterring indirect advertising which affect adversely their choice as customers and their viewing pleasure. This public interest perspective would infuse the determination with a significant “public” character. See: Three Weekly Ltd v Obscene Articles Tribunal (HCAL 42/2003, 29 June 2006, J Lam J) at [94] - [101][47]. 242.In this respect, a decision as to what the public interest requires is not a determination of civil rights and obligations contemplated under BOR10 (ECHR6). As observed by Lord Hoffmann in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at [74]:
243.As submitted also by Mr Chan, in considering what is “clearly editorially justifiable, not obtrusive to viewing pleasure and not gratuitous”, the CA is to play the role of the guardian of public interest. The decisions involve a judgment on what the public interest requires. These are clearly decisions of a public character that is not suitable for judicial determination by an independent and impartial tribunal. These regulatory decisions are, consistent with the rule of law and constitutional propriety, best entrusted to administrators: Runa Begum v Tower Hamlets LBC [2003] 2 AC 430, at paragraphs 56 ‑ 59, per Lord Hoffmann. 244.I accept that the statutory framework of the BO as described above is clearly regulatory in nature and is intended to protect public values and interests. As highlighted by Mr Chan:
245.Further, the contents of the Codes support this conclusion. Of particular pertinence to the present case, the provisions governing indirect advertising and product and service sponsorship were crafted taking into account the public interest considerations of: (a) consumer protection to avoid a subliminal effect on the audience who may not be fully aware of the advertising element in a programme; (b) preservation of programme integrity so as to obviate the risk of the programmes being distorted to accommodate the advertising element; and (c) consumer enjoyment that viewing interest and pleasure would not be obstructed so that indirect advertising is only permitted if it is editorially justified, not obtrusive to viewing pleasure and not gratuitous[48]. 246.In support of its contention, TVB has sought to rely on various materials produced by the Office of Communications (“Ofcom”), the communications regulator in the UK to support its contentions that decisions of a similar nature are to be regarded as subject to ECHR6. In particular the following materials:
247.These materials however do not assist TVB. As pointed out by Mr Chan, these are consultative documents which have since been superseded. It is notable that the most up-to-date guidance document from Ofcom, “Procedures for investigating breaches of content standards for television and radio” dated 3 April 2017 makes no reference to the right to fair trial whatsoever. Indeed, a review by the Ofcom Content Board, which is a committee of the main Board, is considered to be sufficient to satisfy the requirement of ECHR6. In any event, a comparison with the codes of conduct in the UK without having regard to the industry structure and licensing and regulatory regime there is not helpful. 248.Once so considered against the above regulatory context, it is clear to me that the determination by way of the Decisions of TVB’s rights to freedom of expression are not a determination of “civil rights and obligations” for the purpose of BOR10. 249.Secondly, Mr McCoy submits that the Decisions can and will have the effect of affecting TVB’s contractual relationship in with its commercial advertisers, which therefore relate to its civil obligations with third parties. In particular, under section 24 of the BO, the CA can issue a direction to TVB requiring it to take such action the CA considers necessary in order for the licensee to comply with any requirements prescribed under, amongst others, the Codes. These clearly relate to TVB’s civil rights and obligations. 250.I am equally not convinced. 251.As emphasized by both Mr Yu and Mr Chan, TVB has simply provided neither particulars nor evidence to support the contentions that TVB’s contractual rights with others (whether present or future) have been affected by the Decisions. This is particularly so as, prima facie, TVB’s existing contracts with the concerned advertisers have already been performed and there is no evidence provided to support that somehow those contracts’ performance had been curtailed by reason of the Decision. 252.Further, TVB remains at full liberty to implement existing contracts or enter into future contracts to engage in indirect advertising in a manner consistent with the requirements set out in the Codes. 253.Mr McCoy’s reliance on section 24 of the BO does not assist him. 254.Leaving aside the fact that the CA did not make any such direction in the present cases and such a direction is in any event a remote and tenuous possibility, it is important to bear in mind that the CA’s decisions are made on a case by case basis and are fact specific. The CA has expressly stated that it is not bound by its previous decisions, such that there is no basis to suggest that the Decision would be applied in a general and same way in respect of all advertisements TVB may have with its product sponsors. In this respect, TVB also has not adduced any evidence to show how the Decisions may affect its future contractual relations with third parties. Cf: Mattu, supra, [52] - [53]. 255.In the premises, the suggestion that the Decisions have impacted on TVB’s contractual obligations with third parties present or future is simply not supported or proved. 256.Third, TVB says the financial penalty imposed in the KFC Case is a civil debt which can be enforced and recovered by the CA by civil action. This clearly relates to a determination of TVB’s civil rights and obligations. 257.However, the fact that financial penalty under section 28 of the BO is or may be imposed and recoverable as a civil debt per se in the present cases is not sufficient to turn a “public law” issue into a private law right. As mentioned at [236] above, there can be “pecuniary” obligations vis-à-vis the state (such as taxation) which are to be considered as belonging exclusively to the realm of public law, which does not engage BOR10. Hence J Lam J (as he then was) observed in Lee Yee Shing Jacky v Board of Review [2011] 6 HKC 307 at [51]-[55] as follows:
258.In my view, the financial penalty imposed in the KFC Final Decision is clearly of a regulatory nature. The purpose of the financial sanction is to ensure the compliance of the Relevant Provisions and is part and parcel of the regulatory regime. In any event, even if (which I do not agree) the financial sanction has any effect on the civil rights and obligations of TVB, such effect is at best incidental and would not turn what is predominantly and essentially a decision of a public character into a private nature one. 259.I therefore also reject TVB’s said submission. 260.Finally, Mr McCoy says the decisions of a similar nature could lead to the suspension or even revocation of TVB’s licence under sections 31 and 32 of the BO. This would clearly affect TVB’s core business rights and thus its civil rights and obligations. 261.In this respect, counsel submits that the court in determining whether the system under challenge does engage BOR10 right may consider the consequences that are “potentially” at stake in the proceedings. See: A v Finland, App No 44998/98, 8 January 2004, p 9; Maruisic v Croatia, Application No 79821/12, 15 June 2017, at [72] - [73]. 262.I can dispose of this submission quickly. 263.As submitted by Mr Chan and Mr Yu, all these authorities (which are in the context of disciplinary proceedings) show that the outcome of the proceedings under challenge must be directly decisive of the potential consequence of having the right to practise to be at stake for the BOR10 right to be engaged. 264.For example, in Maruisic, the ECHR said at [74] - [76] as follows:
265.Similarly, in R(Thompson), supra, Clarke LJ said at [78] as follows:
266.Under the BO, when the CA considers (a) there may be cause to suspend a licensee’s licence under section 31(1), or (b) there may be cause for the CEIC to revoke the licence under section 32(1), it must cause a public enquiry to be held for that purpose. It is thus clear that the Decisions cannot be directly decisive of any “potential” consequence of having TVB’s licence suspended or revoked. 267.On this basis alone, I will also reject TVB’s submissions. 268.This leaves me to consider the TVB Competition Case. 269.In that case, the CA issued a decision against TVB in finding that it had infringed sections 13(1) and 14(1) of the BO (which are in effect provisions prohibiting anti-competition conducts) by imposing various restrictions on its artistes and signers which had the purpose of preventing, distorting or substantially restricting competition. The CA further directed TVB to end the infringement and to undertake a number of remedial action (including abandoning the restrictions in question), and imposed a financial penalty of $900,000. TVB applied to judicially review the decision on various grounds. 270.Amongst others, the learned judge effectively held at [93] - [173] that the challenged decision involved the determination of rights and obligations in a suit at law, and that the CA was not an independent and impartial tribunal for that purpose. Further, neither the appeal to the CEIC nor the availability of judicial review to challenge the decisions of the CA and the CEIC could not cure this defect. The system underlying the challenged decision was therefore not BOR10 compliant and thus unconstitutional. 271.Mr McCoy therefore submits that the TVB Competition Case is directly on point to support of his contentions that the system underlying the Decision and the Appeal Proceedings engages, and is in breach of, the BOR10 rights. 272.I agree with Mr Chan and Mr Yu that the TVB Competition Case does not assist Mr McCoy as it is clearly distinguishable from the present case for the following reasons. 273.As mentioned at [233] above, whether there is a determination of civil rights, which is an autonomous concept not dependant on domestic classification, is to be determined by the nature of the rights on a case-by-case basis. In other words, BOR10 may be engaged only in relation to some, but not all, the matters dealt with by a particular administrative authority or tribunal. 274.In the TVB Competition Case, G Lam J held that the enforcement action concerning anti-competition provisions in sections 13 - 14 of BO (which have been repealed) involves the determination of civil rights and obligations of three matters. They are, TVB was ordered to abandon certain clauses and polices, its relevant private law rights under existing contracts with artistes and singers were brought to an end by the order made under section 16 of the BO (which has also been repealed) and possibly avoided automatically by virtue of section 13(3), and TVB’s freedom to enter into future contracts was also restricted by the decision and order of the CA. 275.However, none of these is present in the present cases concerning the Codes:
276.For all these reasons, I conclude that the Decisions and the system do not involve the determinations of TVB’s civil rights and obligations for the purpose of BOR10. BOR10 rights are therefore not engaged in the present cases.
277.Once I have concluded that the BOR10 rights are not engaged in the present cases, it is not necessary for me to determine the consequential questions of (a) whether the CA and the CEIC can be regarded as independent and impartial tribunal for that purpose, and (b) if not, whether the availability of judicial review is curative of any possible defects of procedural fairness. 278.Indeed, given my above conclusion, I believe it is not only unnecessary but also inappropriate for me to continue to consider these consequential questions. This is so since, as rightly submitted by Mr Chan, these questions should be considered and in light of the role of the CA, the nature of the decision to be made and the decision‑making process as a whole. In my view, my conclusion above in particular on the public law nature of the Decisions may well affect my consideration of these questions. It would therefore be unrealistic and inappropriate for me to venture into making any determination on these issues on the alternative basis that the Decisions do involve the determination of civil rights and obligations for the purpose of BOR10. D. CONCLUSION 279.TVB therefore fails in all its grounds of challenge in both applications. I will dismiss the judicial reviews. 280.There are no reasons why costs should not follow the event. I will therefore make an order nisi that TVB should pay the costs of the CA and CEIC, with certificate for two counsel. In this respect, I consider it appropriate for CA and CEIC to be respectively entitled to costs since the challenges made against them are separate and distinct and call for certain different submissions to be made. 281.Finally, it remains for me to thank counsel for their invaluable assistance in these matters.
Mr Gerard McCoy SC and Mr Timothy Parker, instructed by Mayer Brown, for the applicant in both actions Mr Johannes Chan SC and Mr John Hui, instructed by Eversheds Sutherland, for the 1st respondent in HCAL 151/2016 and the respondent in HCAL 47/2017 Mr Benjamin Yu SC and Ms Eva Sit, instructed by Department of Justice, for the 2nd respondent in HCAL 151/2016 and the interested party in HCAL 47/2017 [1] Leading Mr Tim Parker. [2] Leading Mr John Hui. [3] The CEIC is joined as the 2nd respondent in the KFC Judicial Review and as an interested party in the Scoop Judicial Review. [4] Leading Ms Eva Sit. [5] This is largely taken from the Affirmation of Tai Ka Pui (“Affirmation of Tai”) and the CEIC’s skeleton submissions. [6] Affirmation of Tai at paragraph 11. [7] See Affirmation of Tai at paragraph 32. [8] See Affirmation of Tai at paragraph 30. [9] The competition provisions have since been repealed with the taking effect of the Competition Ordinance (Cap 619). [10] See Affirmation of Tai at paragraph 37(a); sections 10(1) - (2) of the BMPO. [11] See: Affirmation of Tai at paragraphs 23 ‑ 25. [12] I will deal with this in greater detail under Ground 2, where TVB now seeks to challenge that they are not. [13] See Affirmation of Tai, paragraph 108. [14] See Affirmation of Tai, paragraph 128. [15] BL27 provides that “Hong Kong residents shall have freedom of speech, of the press and of publication…”. In these applications, TVB’s arguments are premised principally BOR16. It is not seeking to argue that BL27 provides any further rights which are different from BOR16. It is therefore unnecessary for the parties and the court to consider separately the rights protected under BL27 under this ground. BL39 effectively constitutionalizes the status of the BOR, which domesticated the provisions of the International Convention of Civil and Political Rights (“ICCPR”). [16] See Chee Fei Ming v Director of Food and Environmental Hygiene [2019] HKCA 1425, at [7] ‑ [8] per Lam VP. [17] See Affirmation of Tai, paragraph 36. [18] See also: Hong Kong Television Network Ltd v CEIC [2016] 2 HKLRD 1005 (CA) at [84], [88], [90], [98] and [99] per Cheung CJHC (as he then was). [19] Such as product, service, trademark, brand name or logo of a commercial nature. [20] See Affirmation of Tai, paragraphs 139 - 143. [21] See paragraph 3 of Chapter 1 of TV Programme Code. [22] See: Hysan Development Co Ltd v Town Planning Board (2016) 16 HKCFAR 372 at [57] - [80]. [23] See Affirmation of Yip Ka Sing at paragraph 15(a). [24] See Affirmation of Yip Ka Sing at paragraph 15(c). [25] See Affirmation of Tai, paragraphs 85 ‑ 87. [26] See Affirmation of Tai, paragraph 89 ‑ 91. [27] See: R v Director of Public Prosecutions ex Kebilene [2000] 2 AC 326, 381B-D; Brown v Stott (Procurator Fiscal Dunfermline) [2003] 1 AC 681, 7031 and Krone Verlag GmBH & Co KG (No 3) v Austria (App No 39069/1997), 11 December 2003, at [31]. [28] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev ed, 2005) 458 [42]; see also 459 [44]. [29] Marc J Bossuyt, Guide to the Travaux Preparatoires’ of the International Covenant on Civil and Political Rights (Martinus Nijhoff, 1987) 386. [30] In this respect, TVB’s reliance on the authority of R (Northern Cyprus Tourism Centre) v Transport for London [2005] EWHC 1698 to support its submissions that the Relevant Paragraphs amount to a disproportionate infringement of the right to freedom of expression is misplaced. The authority is clearly distinguishable as in that case, the court found the restriction disproportionate there was a complete ban of placing the relevant advertisement on all property controlled by the defendant from any source at any time. See [96]. This is very different from the present cases. [31] GN4322. [32] Section 23(2)(e) of the BO provides that a licensee shall “without prejudice to the operation of any Code of Practice which relates to this section, to any regulations under section 42(1)(e) or the [CA’s] functions under section 9 of [the BMPO], secure proper standards for its licensed service with regard to television programme content and technical performance.” [33] The Gazette Notice relevantly states: “Pursuant to section 3(2) of [the BO], the Broadcasting Authority gives notice that it has approved the [relevant revisions in the respective Chapters] in respect of the requirement for a licensee to secure proper standards for its licensed service with regard to television programme content under section 23(2)(e) of the [BO]” [34] See the undisputed evidence deposed to at paragraph 150 of Affirmation of Tai. [35] See section (B), paragraphs (c) and (f) of the CA’s Scoop Provisional Decision dated 18 September 2016. See also [57] and [58] above on the descriptions of the contents of the Subject Scoop Segment. [36] These other decisions have been listed in the Affidavit of Ting Chi Yan Jane and Annex I thereto. [37] Or formerly, the Broadcasting Authority. See: Affirmation of Tai at paragraph 155. [38] See Affirmation of Tai at paragraph 157 and the Pizza Hut Decision stated in the CA’s letter dated 24 May 2016. [39] In particular, and as an example, the court was shown the subject programme segments respectively of the KFC Case and the Pizza Hut Case at the hearing. The court’s then immediate response was to ask Mr McCoy whether the Pizza Hut logo was shown at all in the programme. This highlights one of the reasonable and legitimate bases for the CA to distinguish the KFC Case from the Pizza Hut Case for the purpose of Paragraph 10(a). [40] See in particular TVB’s representations dated 1 July 2016 (ie, the Scoop Initial Representations). [41] See Affirmation of Tai at paragraphs 108 and 128. [42] Section 28(5) of the BO provides: “The [CA] shall not impose a financial penalty under this section unless, in all the circumstances of the case, the financial penalty is proportionate and reasonable in relation to the failure or series of failures concerned giving rise to that penalty”. [43] See Affirmation of Tai, paragraph 162. [44] See Affirmation of Tai, paragraphs 161 to 163. [45] See paragraphs 12 and 13 of the KFC Final Decision. [46] As set out under the Background Section of this Judgment. [47] The Court of Appeal expressed no opinion on this finding on appeal: [2007] 3 HKLRD 673 at [43]. [48] See Affirmation of Yip at paragraph 15. [49] “In this connection, see Stock Exchange of Hong Kong v New World Development [2006] 2 HKLRD 518 at para. 91 where Ribeiro PJ said the principle of fairness provide the appropriate framework to deal with the question of legal representation even though the Disciplinary Committee is not a court.” [50] Which is also repeated upon the taking effect of the Competition Ordinance. | |||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCAL 151/2016