Cheung Tak Wing v. Communications Authority and Another

CACV 570/2018

[2021] HKCA 2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 570 OF 2018

(ON APPEAL FROM HCAL NO. 60 OF 2015)

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Before:  Hon Poon CJHC, Chu JA and Barma JA in Court

Date of Hearing: 2 December 2021

Date of Judgment: 30 December 2021

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JUDGMENT

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Hon Poon CJHC (giving the judgment of the Court):

A. Principal Issues

1.The statutory regime for television and radio broadcasting in Hong Kong is established by, among other statutes, the Broadcasting Ordinance (“BO”) and the Telecommunications Ordinance (“TO”)[1]. Under the regime, the Government may require a television or radio licensee, in compliance with a standard licence condition, to broadcast materials supplied by the Government which are “announcements in the public interest” (“APIs”) free of charge.  APIs are those which satisfy any of the following three criteria (“3 Criteria” collectively):[2]

(1)  it is in the public’s interest to broadcast that message (Criterion 1);

(2)  the message relates to issues of public concern such as health, safety, social welfare, legal obligations, availability of public resources and changes affecting traffic or other environmental factors (Criterion 2); or

(3)  the message is directly related to a government policy or operational objective (Criterion 3). 

Further, a licensee may not broadcast any advertisement of a political nature.  That prohibition, however, does not apply to materials supplied by the Government (“Exemption”).

2.In sum, the Government may require a television or radio licensee to broadcast an API even if it is of a political nature.

3.The principal issues raised in this appeal against the judgment of Au J (as he then was)[3] are:

(1)  Whether the Impugned Announcements[4] were APIs (Issue 1);

(2)  Even if the Impugned Announcements were APIs, whether the relevant provisions, that is, section 23(3) of the BO, and paragraph 5(b)(ii) of the Radio Code of Practice on Advertising Standards (“Radio Code”), which created the Exemption, were unconstitutional in that they had impermissibly infringed the applicant’s right to:

(a)  freedom of expression under article 27 of the Basic Law (“BL 27”) and article 16 of the Hong Kong Bill of Rights Ordinance[5] (“BOR 16”); and

(b)  equality under article 25 of the Basic Law (“BL 25”) and article 22 of the Hong Kong Bill of Rights Ordinance (“BOR 22”)

(Issue 2 and Issue 3 respectively).

B.     Impugned Announcements

4.The factual circumstances leading to the broadcast of the Impugned Announcements may be outlined as follows.

5.Pursuant to article 45 of the Basic Law (“BL 45”), the Chief Executive (“CE”) shall be selected by election or through consultations.  The method for selecting the CE shall be specified in the light of the actual situation of Hong Kong and in accordance with the principle of gradual and orderly progress.  The ultimate aim is the selection of the CE by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures. The specific method for selecting the CE is prescribed in Annex 1 of the Basic Law.

6.Pursuant to the Interpretation by the Standing Committee of the National People’s Congress (“NPCSC”) of Article 7 of Annex I and Article III of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China on 2 April 2004, amendments to the method of selecting the CE have to complete a 5-Step process:

(1)  1^st Step – the CE to make a report to the NPCSC so as to invite the NPCSC to decide whether it is necessary to amend the method of selection;

(2)  2^nd Step – the NPCSC to make a determination on whether any amendment to the method of selection may be made;

(3)  3^rd Step – the HKSAR Government to introduce to the Legislative Council a resolution on the amendments to the method for selecting the CE, to be passed by a two-thirds majority of all the members of the LegCo;

(4)  4^th Step – the CE to consent to the resolution as passed by the LegCo; and

(5)  5^th Step – the CE to report the relevant bill to the NPCSC for approval.

7.The 1^st Step was completed when the CE on 15 July 2014, after a first round of consultation, made the Report on the Public Consultation on the Methods for Selecting the Chief Executive in 2017 and for Forming the Legislative Council in 2016 to the NPCSC, suggesting that amendments be made to the method for selecting the CE in order to attain the aim of universal suffrage.  The 2^nd Step was completed when the NPCSC on 31 August 2014 made the Decision on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016, prescribing the parameters within which the CE election method might be reformed (“the 831 Decision”).

8.The Government then undertook a second round of consultation between 7 January and 7 March 2015. Thereafter, the CE on 22 April 2015 published the Consultation Report and Proposals on the Method for Selecting the Chief Executive by Universal Suffrage, setting out the public’s views received during the consultations, the package for the method of selecting the CE in 2017, and the Government’s reform proposals for the method for selecting the CE, which in the Government’s view conformed with the 831 Decision and reflected the public views (“Reform Proposals”).  At the commencement of the proceedings below, that is, May 2015, a motion containing the Reform Proposals was soon to be placed before the LegCo for endorsement (“the Motion”).  If the LegCo endorsed the Motion, that would have completed the 3^rd Step, to be followed by the 4^th and 5^th Steps.  Eventually, the Government would amend local legislation to implement the electoral arrangements so approved for the CE election in 2017.

9.For the purposes of the consultations, promoting the Reform Proposals and soliciting public support, the Government had since December 2013 produced, among others, a series of advertisements on the 2017 CE election broadcasted on television and radio. They included:

(1)  Let’s Talk and Achieve Universal suffrage (from 4 December 2013);

(2)  Let’s Achieve Universal Suffrage Together (from 6 February 2014);

(3)  Seize the Opportunity to Achieve Universal Suffrage (from 4 April 2014);

(4)  A Clear Basis for Achieving Universal Suffrage (from 4 May 2014);

(5)  Your Vote.  Don’t Cast it Away (from 7 August to 28 August 2014, that is, after the completion of the 1^st Step and before the 2^nd Step);

(6)  Your Vote. Gotta have it (from 3 September 2014);

(7)  2017, Seize the Opportunity (from 10 January 2015 until the close of the second consultation on 7 March 2015); and

(8)  a series of advertisements entitled “2017, Make it happen!” (“the Impugned Announcements”[6]) (from 22 April 2015 onwards until the Motion was put to the LegCo on 17 June 2015).

C.     Proceedings below

10.The applicant is a Hong Kong permanent resident and an eligible voter.  The 1^st respondent is the Communications Authority (“the Authority”).  It is an independent statutory body established under the Communications Authority Ordinance[7] to regulate the broadcasting and telecommunications industries in Hong Kong.  Its functions and powers are defined by the BO, TO and the Broadcasting (Miscellaneous Provisions) Ordinance (“BMPO”[8]). The 2^nd respondent is the Director of Information Services (“the Director”).  The Information Services Department (“ISD”) is responsible for, among others, coordinating the placement of all APIs submitted by Government bureaux and departments, advising what materials qualify for APIs, and allocating air time for APIs.

11.The applicant, a retired press photographer, said he had no affiliation with any political group.  His case was that he owned a radio and television and would watch television and listen to radio from time to time.  He had since 22 April 2015 seen and heard the Impugned Announcements at least once a day on either medium.  His complaints fell into three main grounds.  Firstly, the Impugned Announcements were political in nature and thus were not APIs.  Secondly, even if the Impugned Announcements were APIs, they contained partial political views.  As part of his right to freedom of expression under BL 27 and BOR 16, he had a right not to receive them.  And the Exemption was a disproportionate interference with that right.  Finally, the Exemption, which treated the Government more favourably than other Hong Kong residents, was discriminatory in nature and infringed his right to equality under BL 25 and BOR 22.  He sought both injunctive and declaratory relief.

12.On 5 June 2015, the Judge heard the leave application and the application for interim injunction. He allowed the former but refused the latter.

13.On 17 June 2015, the LegCo did not pass the Motion by the requisite two-thirds majority.  So when the substantive hearing took place on 7 November 2016, as noted by the Judge, it was wholly academic for the applicant to seek an injunction to restrain the Impugned Announcements from being broadcast.[9] He nevertheless persisted with the judicial review to seek various declarations.  The respondents resisted, contending that the judicial review had become academic; that it was unmeritorious and that the applicant was guilty of inordinate delay.

14.The Judge gave a comprehensive judgment in disposing of all the issues raised before him.  For the reasons that he gave, the Judge decided to hear the judicial review although the matter had become academic.[10] He found that the Impugned Announcements were APIs as they satisfied Criterion 3, without deciding if they also satisfied Criterion 1 or Criterion 2.[11]  He further held that the applicant’s right to freedom of expression was not engaged.[12]  He also found that the Government was in a relevantly different position to other Hong Kong residents in relation to political advertising.  The Exemption therefore did not amount to discrimination.[13]  Finally, on delay, the Judge noted the parties’ difference but did not see the need to conclusively decide the point.  This was because even if there was delay, he would still have exercised the discretion to grant the relief if the applicant were successful in his judicial review.[14]

D.     Overview of the arguments on appeal

15.Notwithstanding what is set out in the amended notice of appeal, the applicant’s arguments have now become considerably narrower in scope than was the case below.  Mr Paul Shieh SC, for the applicant,[15] confined the applicant’s appeal to three points:

(1)  The Judge erred in finding that the subject matter of the Impugned Announcements fell within the definition of APIs as being related to a policy.  The divisively political issue of the method of selecting the CE could not relate to the management by the Government or the LegCo of its affairs.

(2)  The Judge was wrong to find that the applicant’s freedom of expression under BL 27 and BOR 16 were not engaged.  That right carried with it a constitutional right not to receive partial political advertisements. The Exemption was a disproportionate interference with that right when viewed against the lack of independent regulatory oversight of Government materials and the ban on members of the public responding with political advertisements.

(3)  The Judge erred in holding that the applicant’s right to equality of treatment under BL 25 and BOR 22 was not infringed by the Exemption.  The applicant was on the receiving end of partisan political speech and had sufficient standing to launch a challenge. In the context of freedom of speech and communication of political ideas, there is no relevant difference between the Government and other Hong Kong residents. The blanket exemption in favour of the Government for all things political is unjustifiable.

16.Mr Johnny Mok SC, for the Director,[16] countered by arguing:

(1)  The Impugned Announcements satisfied all the 3 Criteria.

(2)  The Judge was correct in holding that the applicant’s freedom of expression was not engaged as the applicant was not challenging the ban against political advertising, and the right to freedom of expression does not include any “right not to receive partial political advertising”.

(3)  The Judge was correct in holding that the applicant’s right to equality was not infringed.  The differential treatment is justified because of the Government’s unique position.  And it is no more than reasonably necessary to enable the Government to perform its duty in explaining its proposals.

17.Mr Mok further argued that insofar as necessary, the Judgment ought to be affirmed on the additional grounds that (a) the Exemption does not engage BL 27, BOR 16, BL 25, or BOR 22, (b) there had been inordinate delay in bringing the judicial review, and (c) the judicial review application was academic and ought not to be entertained.

18.Mr Abraham Chan SC, for the Authority,[17] relied substantially on Mr Mok’s submissions with some additional reasons.  He further argued that the applicant did not have standing to pursue the judicial review.

E.     APIs and the Exemption

19.To give the context for our discussion on the Issues, we first set out in greater detail the licensing regime for television and radio broadcasting services to see how APIs and the Exemption feature in the scheme.

20.Pursuant to section 8 of the BO, television broadcasting services can only be provided with a licence granted or renewed by the Chief Executive in Council (“CEIC”) under section 10 or section 11.  A person shall not provide a broadcasting service except under and in accordance with a licence; otherwise, he commits a criminal offence: section 5.  Similarly, pursuant to section 8 of the TO, radio broadcasting services can only be lawfully provided pursuant to a licence granted or renewed by the CEIC under section 13C or section 13E.  Any person who contravenes section 8 commits a criminal offence under section 20.

21.In granting or renewing a television broadcasting licence, the CEIC may impose such conditions as specified: sections 10(1) and (2); and section 11(6)(a) respectively. Likewise, the CEIC may specify any condition in granting or renewing a radio broadcasting licence: section 13C(2) and section 13E(2) respectively.

E1.    APIs

22.The requirement to broadcast APIs is imposed on the licensee by way of licence condition.

23.As a standard condition for all television licences, Condition 18.1(b) stipulates:

“ television programmes and other material in the public interest including … as [the Authority] may provide or direct and at such time, within such period, on such channel, within or without such programme and in such language or dialect as [the Authority] may direct.”

Condition 18.4 further provides that the licensee shall not be entitled to charge the Authority or the Government in performance of that Condition.

24.A similar condition for radio licences reads:

“28. Announcement in the public interest

The Licensee shall broadcast in each of its Sound Broadcasting Service channels for periods not exceeding in total one minute in each clock-hour such API as [the Authority] may determine.”

25.To implement the above licence conditions, the Authority has issued general directions to all free and pay television licensees and radio licensees requiring them to broadcast APIs as provided by the Government in accordance with specific broadcast schedules or timeslots.  The Authority is not otherwise involved in the broadcasting of APIs.  It is the ISD which deals with the related matters concerning APIs.[18]

26.ISD’s evidence on APIs generally, which is not disputed, may be summarized as follows:[19]

(1)  API broadcasts on local television and radio have had a long history of over 30 years.  They have always been used by the Government to publicise policies, initiatives and consultations, and to educate the public on social issues and legal obligations.  This is because television and radio, which reach a vast majority of the community in the intimacy of their homes, are considered to be the most cost-effective, familiar and immediate broadcast media in terms of communication and dissemination of information to the public.

(2)  The then Governor-in-Council in 1986 adopted as policy the 3 Criteria for APIs.  The ISD has been using them to determine what materials qualify for APIs up to now.  The 3 Criteria are consistent with the requirement for the Government to discharge its duties in the public interest to publicise and promote matters of concern to the public including the Government’s own policies and operational objectives.

(3)  In approving API air time in principle and allocating air time for APIs, the ISD (a) exercises quality control to ensure that the APIs meet certain professional standards in relation to story-line, messages, technical execution, etc; (b) advises and provides logistics support to Government bureaux and departments and their contractors in producing APIs; and (c) allocates impartially air time resources for the numerous and competing demands from Government bureaux and departments and non-government organizations for prime and fringe air time on television and radio, having regard to, among other considerations, whether the APIs concern pressing or topical issues of major importance to the public.  Priority will be given to, among others, APIs which inform the public of new policies or seek public views on proposed policies or initiatives. 

(4)  Most APIs are 30 seconds long according to the long-established standard. The standard is based on considerations including scheduling efficiency as well as the unique public education and informational aspects of APIs when compared to commercial advertising.

(5)  The scheduling of APIs takes place on a weekly basis.  As at the time of the proceedings below, in any given week, there were usually more than 150 APIs from the Government and over 40 APIs from non-government bodies (such as the Hong Kong Red Cross and the Community Chest) available for broadcast.  On any given day, there were 48, 30-second slots available for each free television and radio and 24, 30-second slots on pay television channels.  The APIs covered a wide range of subject matters of public concern, including the CE election 2017.  The Impugned Announcements were treated in the same manner as other APIs.

E2.    The Exemption

27.The Exemption for television broadcast is created by statute.  Section 23(2)(b) of the BO provides that a television licensee shall comply with any requirements under the BO which are applicable to it.  And under Rule 12 of Schedule 4 of the BO, a licensee shall not include in its service any advertisement of a political nature.[20] Section 23(2) however does not apply in case of material supplied by the Government: section 23(3).

28.The Exemption for radio broadcast is contained in the Radio Code published by the Authority in January 2013.  The Radio Code has the statutory backing of the relevant provisions in the BMPO:

(1)  Section 9(1)(d) empowers the Authority to secure proper standards of television and sound broadcasting with regard to both programme content including advertisements without limitation, restrictions on the time of day when advertisements may be provided whether for the same or different licensees or broadcasts.

(2)  Section 19 further provides the Authority with the power to issue codes of practice relating to standards of advertisements broadcast by a licensee.

(3)  Under section 24, the Authority may impose penalties on a licensee for non-compliance with any code of practice.

29.Paragraph 28 of the Radio Code prohibits all advertisements of a political nature except with the prior approval of the Authority.  However, paragraph 5(b)(ii) provides that for the purpose of the Radio Code, the term of advertisement or advertising material does not include API.

30.According to the Authority and the Director, the rationale for the Exemption is this.  A licensee must broadcast APIs provided by the Government, even if they are of a political nature, without any prior editorial control.  The Exemption relieves him from any liability which he might otherwise attract for broadcasting political advertisements.[21]

F.     Issue 1

31.The Impugned Announcements were APIs if and only if they satisfied any of the 3 Criteria.

F1.    Criterion 1

32.Under Criterion 1, an advertisement qualifies as an API if it is in the public’s interest to broadcast it.  It involves an objective assessment of all the circumstances, having regard to (a) the subject matter of the advertisement; (b) the significance of the subject matter to Hong Kong, the general public or a sector thereof as the case may be; (c) the purpose of the advertisement; and (d) any other relevant considerations.

33.On (a), the subject matter of the Impugned Announcements was the Reform Proposals.  They concerned the method for selecting the CE in attaining the ultimate aim of universal suffrage as prescribed by BL 45 and within the parameters laid down in the 831 Decision.  Moreover, they were also a necessary precursor to any further reform of the selection of the members of the LegCo by universal suffrage.[22]  They were evidently matters that are of great public interest.

34.On (b), the Reform Proposals were pivotal to the further constitutional development of the HKSAR. As such, they would represent a most significant development in the constitutional and political structure of the HKSAR under the “one country, two systems” principle.  They obviously had tremendous importance for Hong Kong and the general public as well.

35.On (c), given the immense constitutional significance and immense public interest involved in the Reform Proposals, the Government regarded it as its duty to widely publicise them so that the public could be apprised of the relevant facts, the constitutional framework, including the 831 Decision, and the underlying rationale and considerations.  The Government also saw it as its duty to promote the Reform Proposals and garner public support in light of the controversies surrounding them.  Hence the series of advertisements since December 2013 culminating in the Impugned Announcements.

36.Thus examined, it was clearly in the public’s interest to broadcast the Impugned Announcements.  They qualified as APIs under Criterion 1.

F2.    Criterion 2

37.Under Criterion 2, an advertisement qualifies as an API if it relates to issues of public concern. It entails an objective assessment of all the circumstances involving considerations similar to those set out at [32] above with the focus on public concern.

38.Since the Reform Proposals were extremely important from a constitutional and political perspective, they must have been a huge concern to the public.  The public must have a legitimate interest in knowing and understanding the Reform Proposals so that they could form an informed view on them amidst all the controversies.  The Government had a corresponding duty to explain them to the public.  The Impugned Announcements clearly related to issues of public concern and qualified as APIs under Criterion 2.

F3.    Criterion 3

39.Under Criterion 3, an advertisement qualifies as an API if it is directly related to a government policy or operational objective.

40.According to its natural meaning, “policy” includes “the general principles by which a government is guided in its management of public affairs or the legislature in its measures”;[23] “a course of action or principle adopted or proposed by a government”;[24] and “a high-level overall plan embracing the general goals and acceptable procedures especially of a governmental body”.[25]  Applying these natural meanings, a government policy refers to the general principles, guidelines, statements or plans which govern or guide the conduct of its affairs, management of its business, discharge of its functions and duties, exercise of its powers and discretions; and where appropriate, set the procedures or steps by which measures are implemented and goals or objectives are attained.  A government policy may cover any area or subject matter that falls within the ambit of the very extensive powers and functions exercised by the Government as prescribed by the law, including the Basic Law.

41.Thus understood, the term “government policy” for the purpose of Criterion 3 must include the Reform Proposals.  They were formulated and put forward by the Government as part of its constitutional duty to take forward the HKSAR’s constitutional development regarding the method of electing the CE in accordance with BL 45 and the parameters set by the NPCSC.  They contained a package of proposals, which the Government considered to be constitutional and according with practical reality, to achieve the goal of selecting the CE by universal suffrage.  They were eminently government policy.

42.Mr Shieh argued that the Reform Proposals could not be regarded as government policy or operational objective because they were at the material times a deeply divisive political topic, yet to be voted on by the LegCo; a one-sided portrayal of the supposed merits of the Reform Proposals; did not relate to management of affairs in any sense; and did not relate to any mere legislative measures in the sense of a measure to address a societal problem.  They rather related to the higher level and quintessentially political question of how the CE should be selected.  It is a misuse of language to say that it is itself a policy or operational objective of the Government to devise methods as to how to select the CE.  The Impugned Announcements therefore did not satisfy Criterion 3.

43.The main propositions underlying Mr Shieh’s submissions are laden with difficulties:

(1)  They wrongly assume that a government policy cannot be controversial, a deeply divisive political topic, or viewed as one-sided by a sector of the public.  In a pluralistic society such as Hong Kong, any given government policy may easily give rise to differences in opinion and controversy or even attract criticism.  But that will not turn a government policy into a non-policy.

(2)  They also wrongly assume that a proposal by the Government must have the blessing of the LegCo before it could become a policy.  Very often, a government policy requires legislative backing to attain its objectives.  It very much remains a policy pending the LegCo’s approval or even if eventually it meets with the LegCo’s disapproval.

(3)  His suggestion that government policy does not cover high-level matters is contrary to its natural meaning and defies common sense.  More importantly, it would unduly hamper the Government’s functions and powers in terms of its ability to formulate policy for such matters which are by definition immensely important or, as counsel put it, quintessential.  The Government cannot possibly be so crippled.

We accordingly reject Mr Shieh’s submissions.

44.The Impugned Announcements were directly related to a government policy and qualified as APIs under Criterion 3.

F4.    Conclusion

45.For the above reasons, we answer Issue 1 in the affirmative.

G.     Issue 2

G1.    Whether BL 27 and BOR 16 are engaged

46.The applicant’s challenge based on his right to freedom of expression raises the prior question whether BL 27 and BOR 16 are engaged.

47.Mr Shieh submitted that the court always provides a wide and generous interpretation of fundamental rights.  BL 27 and BOR 16 positively protect not only the freedom to express one’s political views but also the converse, namely not to receive partial political advertisements.  In support, he relied heavily on Lord Bingham’s dictum in Animal Defenders International v Secretary of State for Culture, Media & Sport [2008] 1 AC 1312, at [28]:

“The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated. It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.” (emphasis added)

48.The applicant accepted that the ban on political advertising is proportionally justified because BOR 16(3)(a) allows such restrictions to be imposed out of respect for the rights of others.  However, referring to Lord Bingham’s observation in Animal Defenders above, Mr Shieh argued that the right not to be exposed to the potential mischief of partial political advertising, as a counter right capable of trumping or being weighty enough to justify restriction of an explicitly articulated constitutional right, must itself be of equal status, that is, a right recognised and protected constitutionally.  Thus, he reasoned, the bundle of rights protected by BOR 16 includes not only the explicitly mentioned right of expression, but also the right not to be exposed to or to receive partial and partisan political speech.

49.Mr Shieh went on to submit that “partial” in context does not mean views in a society where the government is formed on party politics principles.  The emphasis of the democratic and electoral process in Lord Bingham’s observation is not on the way in which a government is formed but on the desirability of having pluralistic views to be expressed, contradicted, answered and debated.  Viewed in such light, the Exemption amounted to a restriction of the right not to be exposed to partial political advertising insofar as the Government could supply political advertisements while everyone else was banned from doing so.

50.Mr Shieh’s reliance on Lord Bingham’s observation in Animal Defenders is entirely misplaced. Properly understood, as pointed out by the Judge,[26] Lord Bingham was referring to a right of others the protection of which justified the restriction of the right to freedom of expression, as opposed to a right arising from the freedom of expression.  The “counter right”, as a justification of the restriction on the right to freedom of expression, is not part of that right.  So BL 27 and BOR 16 do not encompass the right not to be exposed to potential mischief of partial political advertising as contended.

51.Mr Shieh’s next argument that the “counter right” must necessarily be of equal status and weight as a recognised constitutional right merely because it is capable of “trumping” the latter is untenable.  As Mr Chan rightly submitted, non-absolute constitutional rights are often justifiably restricted on the basis of legitimate aims and interests under the well-established 4-stage proportionality test.  But this does not mean that those aims and interests are necessarily rights of equal weight or status of such constitutional rights.  They may or may not be, depending on the actual circumstances.

52.Finally, on Mr Shieh’s submission that the Exemption contained partial political advertising, as noted, the applicant did not challenge the ban against political advertising before the Judge[27] or on appeal.  In fact, he accepted that the ban is not an infringement of the right of freedom of expression.  In the circumstances, like the Judge[28], we find it illogical to argue that the Exemption constituted a restriction and violation of the applicant’s right not to receive the Impugned Announcements as partial political advertising as he alleged, when the ban itself is not an infringement.

53.In consequence, the applicant’s rights under BL 27 and BOR 16 are simply not engaged on the facts.  His challenge based on the alleged infringement by the Exemption fails in limine: Official Receiver v Zhi Charles (2015) 18 HKCFAR 467 per Fok PJ and Stock NPJ, at [22]-[23].

G2.    Restriction justified anyway

54.In light of our conclusion above, it is unnecessary for us to deal with proportionality.  For completeness, we agree with Mr Mok and Mr Chan that in any event, the interference with the applicant’s supposed right not to receive partial political advertising can be readily justified under the proportionality test when balanced against (a) the right of other members of the public who do want to receive Government supplied information through television and radio, and (b) the fact that the applicant could easily block out the broadcast contents that he does not like by changing channels or switching-off his television or radio: Lai Man Lok v Director of Home Affairs [2017] 3 HKLRD 338, per Chow J (as he then was) at [48].

55.For the above reasons, we answer Issue 2 with a “No”.

H.    Issue 3

56.In approaching a discrimination challenge, the court will first determine whether there is a differential treatment on a prohibited ground and, only if this can be demonstrated, will then examine whether it can be justified.  In order to show the existence of a differential treatment on a prohibited ground, generally speaking, the complainant must establish (a) he has been treated differently to a person in a comparable, or analogous, position, and (b) the reason for the differential treatment is based on the prohibited ground.  For justification, the court applies the 4-stage proportionality test. See Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127 at [19]-[21].

H1.    Whether the Government is in a relevantly different position

57.Mr Shieh submitted that the Government and any person or party who supports or opposes Government policy are in an analogous position in the context of expression of views on a hotly divisive political matter which is imminently to be voted on by the LegCo. The Exemption, which only applies to materials supplied by the Government, is therefore discriminatory.  The Judge therefore erred in finding the Government is in a different position from other persons to justify different treatment under the Exemption.  With respect, Mr Shieh’s submissions totally ignore the Government’s unique position in the constitutional setting of the Basic Law.

58.As provided for in articles 43, 48 and 62 of the Basic Law, the Government has a unique constitutional power and function to formulate and implement policies.  The Government has to engage the public, to encourage public discussion and participation in the process of formulating and implementing a policy, to inform the public of the subject matter in question, and to seek public support where it is due.  Requiring television and radio licensees to broadcast APIs, where the APIs are political with the aid of the Exemption, is essential to that function. The Government cannot effectively perform the task if it is also subject to the prohibition like others.

59.Moreover, the Government has to cater for the public interest of Hong Kong as a whole and the different and very often competing interests of various sectors of the society in formulating policies and making decisions, always with the overall good of Hong Kong as its primary goal.  Hence, the Government is entirely different from any ordinary political party or interest group whose primarily focus is on their own political agenda or objectives.  It is therefore inapt to compare the Government with them; or for that matter, any person or party who supports or opposes a government policy.

60.In terms of fact, that unique constitutional position is also borne out by the role the CE and the Government play in the framework for amending the method for selecting the CE under article 7 of Annex I of the Basic Law.  It is for the CE to make a report to the NPCSC as to whether there is a need to amend Annex I of the Basic Law, and it is for the Government (and no one else) to introduce bills on the amendments to the method for selecting the CE.  Mr Shieh submitted that the Government’s constitutional duty ended when the Motion was placed before the LegCo.  With respect, this blinkered view of the Government’s constitutional function and duty is artificial and flatly contradicted by political reality.

61.In wrapping up his submissions, Mr Shieh submitted that the Government is preferred because it is the Government.  This “circularity argument” adds nothing in substance.  In light of its unique and pivotal constitutional role and functions as explained above, the Government stands relevantly different from others. 

62.In consequence, the applicant’s discrimination challenge cannot get off the ground.

H2.    Different treatment justified in any event

63.Again for completeness, we will very briefly deal with the proportionality test.  In this regard, we entirely agree with the Judge’s analysis:[29]

(1)  The Exemption serves the legitimate aim of enabling the Government to promote and educate the public on its policies and legislative proposals and to seek public support.  The legitimate aim of the Exemption could not be affected by whether a policy, such as the Reform Proposals, is “deeply divisive” or not.  One may say it is all the more important for the Government to properly explain and seek support in respect of those policies which are controversial or “divisive” in nature.

(2)  The Exemption is also rationally connected with the legitimate aim of effectively promoting and educating the public on its policies and legislative proposals given that the television and radio broadcasting services (particularly free television) would allow the Government to reach its audience in a cost-effective way.

(3)  Given that (a) there are no comparable means by which the Government could reach out to the public as effectively as television and radio services, (b) unlike ordinary Hong Kong citizens, the Government has a specific duty to engage the public on government policies and legislative proposals, and (c) ordinary Hong Kong citizens can voice their views through other forms of media, the Exemption is no more than reasonably necessary to accomplish its legitimate aim.

(4)  The applicant did not challenge the ban against political advertising and the removal of the Exemption would not have the effect of enabling political advertising.  The removal of the Exemption would however unduly restrict the media through which the Government could provide the public with information on policies and enlist the public’s support and cooperation.  On the other hand, the applicant could easily avoid receiving political advertising, such as the Impugned Announcements, by changing channels or simply switching off his television or radio.  In the circumstances, a reasonable balance is struck by the Exemption.

64.In conclusion, we also answer Issue 3 with a “No”.

I.    Miscellaneous points

65.For completeness, we will deal with the remaining miscellaneous points arising from counsel’s submissions very briefly.  Mr Mok and Mr Chan argued that the Judge erred in entertaining the applicant’s challenge (and to grant relief in the event that the challenge were successful) even though (a) the matter had become wholly academic, and (b) the applicant had delayed in bringing the proceedings.  Separately, Mr Chan argued that the applicant had no standing to bring these judicial review proceedings.  

66.First, we think it was open to the Judge, for the reasons that he gave,[30] to entertain the applicant’s judicial review even if it had become academic.  The issues raised on the interpretation of term APIs, the duties of the Authority and the Director, and the constitutionality of the Exemption, were important issues of law which ought to be decided.  There is no basis for us to interfere with the Judge’s exercise of discretion in hearing the application.

67.Second, on delay, for the reasons that he gave,[31] the Judge indicated that he was prepared to exercise his discretion to extend time and grant relief if the applicant was successful on the merits.  This was entirely a matter of the Judge’s discretion, with which an appellate court would not easily interfere: R (Thornton Hall Hotel Ltd) v Thornton Holdings Ltd [2019] EWCA Civ 737, per Etherton MR, Lindblom and Irwin LJJ at [21(8)].  In the circumstances of this case, it was open to the Judge to exercise his discretion in the way he did.

68.Finally, our conclusions on the merits have rendered the issue on standing academic.  We would add that in a case where the Judge had granted leave to bring judicial review proceedings and had not dealt with the issue of standing as a preliminary question, there is little point for us to dwell on it especially when it would necessarily require the taking of a holistic approach and the consideration of a host of relevant factors including but not limited to the merits of the application: see e.g. R (Chandler) v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011, per Arden LJ (as she then was), at [77]).

J.    Dispositions

69.For the above reasons, we dismiss the appeal.

70.We will make an order nisi that the costs of the appeal be to the respondents, to be taxed if not agreed, with a certificate for two counsel. The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

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 SC and Mr John Cheung, instructed by Eversheds Sutherland, for the 1^st respondent

Mr Johnny Mok SC, Mr Johnny Ma and Mr Justin Ho, instructed by the Department of Justice, for the 2^nd respondent