Asia Television Ltd v. Chief Executive in Council

HCAL 20/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 20 OF 2012

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Before: Hon Lam J in Court

Date of Hearing: 6 March 2012

Date of Decision: 6 March 2012

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D E C I S I O N

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1.Despite the valiant effort by Mr Fung SC, I shall refuse leave. Plainly the decision maker for the grant of a licence under Section 8(1) of the Broadcasting Ordinance Cap 562 [“the Ordinance”] is the Chief Executive in Council [“CE in C”]. The role of the Broadcasting Authority [“the Authority”] in such application is to make a recommendation under Section 9.

2.In the making of such recommendation, the Authority is not exercising a statutory discretion; it is performing a statutory duty.  The authority who exercises the statutory discretion in determining the grant or refusal of a licence is the CE in C, not the Authority. It is open to the CE in C to accept or reject the recommendation of the Authority.

3.Mr Fung contended that in making the recommendation, the Authority exercised a statutory discretion.  But Section 9 of the Ordinance does not confer any discretion on the Authority.  It is obliged by the statute to invite representations from members of the public and consider them.  After due consideration, it is obliged to provide a recommendation to the CE in C.  Whilst the Authority may have to exercise its judgment in forming an opinion to be set out in the recommendation, the proffering of such opinion cannot be characterized as an exercise of statutory discretion under the Ordinance. 

4.As stated in the letter from the clerk to the Executive Council on 18 August 2011, the procedure is similar to the one adopted under Section 10(4) for variation of licence.  The representations received by the Authority would be fairly reflected in the recommendation submitted by the Authority.  The CE in C can consider such representations on their own merits. The recommendation per se would not constitute a decision on the grant or refusal of a licence. 

5.It follows that the recommendation of the Authority is not a decision of the Authority in the exercise of a discretion conferred upon it under the Ordinance.  As such the recommendation does not come within the scope of Section 34 of the Ordinance.

6.Also, I do not think it is arguable that the Applicant is a licensee aggrieved by a decision of the Authority.  As I said, the recommendation per se does not have the effect of granting new licences.  Until the CE in C makes a decision under Section 10, the Applicant cannot be said to be aggrieved for the purpose of Section 34.

7.I also agree with the legal analysis set out at para 6 of the memorandum for Executive Council in respect of the Applicant’s petition (at p 158-160 of exhibit SPYJ-1). 

8.Therefore the CE in C is correct in holding that an appeal against such recommendation cannot be entertained.  Applying the Chan Po Fun threshold, I do not think there is any arguable error of law in the decision of the CE in C in rejecting the appeal.

9.Further, it follows from the above analysis that any attempt to seek judicial review in respect of the recommendation is doomed to fail on the ground that it is only a preliminary step to the determination of the matter by the CE in C.  Likewise, a challenge to the CE in C’s refusal to entertain the appeal against such recommendation is doomed to fail.  There is no reason why the Applicant should not wait until a determination has been made by the CE in C.  In fact, the Applicant does not see any need to have this challenge decided before the determination.  In the Form 86 at para 74, it asks for this application to be deferred and to be heard together with an intended judicial review against the determination by the CE in C.

10.The issue of prematurity can be tested by asking the following question: once a determination has been made by the CE in C, bearing in mind that the Applicant intends to commence fresh judicial review application in respect of such determination, would the present challenge still serve any useful purposes?

11.Mr Fung SC submits that the power of the CE in C in an appeal under Section 34 is wider than his power in Section 10.  In particular, counsel said the CE in C may, in an appeal, receive representations directly from the licensee.  Under Section 64(4) of the Interpretation and General Clauses Ordinance Cap 1 the CE in C may consider and take into account any evidence, material, information or advice in the absolute discretion of the Chief Executive.  Counsel also refers to the various possibilities in which the CE in C may dispose of an appeal under Section 35(2) of the Ordinance.  He says that the CE in C may direct the Authority to conduct further consultation and makes fresh recommendation on the matter pursuant to Section 64(5) of Cap 1.

12.Section 35(2) appears to be narrower in scope than Section 64(5).  In light of Section 2(1A) of Cap 1, I shall assume (without deciding) that the CE in C may give the direction as suggested by Mr Fung.

13.However, I do not think these submissions on the power of the CE in C in Section 34 and Cap.1 avail the Applicant in the present case.  Based on the grounds advanced by the Applicant in the Form 86, the real complaint is not about the consultation process.  Rather, the complaint is about the merits of the recommendation.  The Applicant does not identify any areas where it is alleged that it has been deprived of opportunity to put forward for the Authority’s consideration.

14.As far as merits is concerned, as I have said above, the CE in C is the decision-maker.  Though he may give appropriate weight to the recommendation as he deems fit, his decision making power under Section 10 is unfettered.

15.There is therefore no basis for the Applicant to suggest that without any appeal it is prejudiced by being deprived of the right to have the merits tested before the CE in C.  Whether by way of appeal or by way of the consideration of the recommendation under Section 10, the merits of the Applicant’s case (as set out in the representation fairly reflected in the recommendation) will be considered by the CE in C.

16.Nor do I see any arguable merit in the Applicant’s submission on discrimination by comparing the present case with a Section 8(2) application.  In both cases, the merits could be considered by the CE in C, though a Section 8(2) application (regarding Non-domestic or Other Licensable service) would be decided by the Authority in the first instance and would only reach the CE in C by a Section 34 appeal.  The different ways in which different types of applications are handled do not result in any unfavourable treatment in substance in respect of the Applicant’s case.  The lack of appeal in respect of a recommendation of the Authority under Section 9(2) simply stems from the fact that the decision maker for a Section 8(1) application is the CE in C instead of the Authority.  Mr Fung is not comparing like with like.

17.Coming back to the question at para 10 above, given the above analysis, once a determination is made by the CE in C under Section 10, if there were to be any challenge by way of judicial review it must be made in respect of the determination as opposed to the prior recommendation.  The present challenge does not add anything of substance to the eventual challenge of the determination by the CE in C.  In this connection, if I can be forgiven for adapting the judgment of Carnwath LJ in Shrewsbury and Atcham BC v Secretary of State [2008] 3 All ER 548 at para 35,

“… there would be no purpose in the court ‘setting aside’ [the refusal to entertain the appeal] while leaving [the determination of the CE in C under Section 10] in place, since it is only the latter which provide the direct legal foundation for the [grant of the new licences].”

18.As His Lordship observed at para 32,

“Judicial review, generally, is concerned with actions or other events which have, or will have, substantive legal consequences.”

19.In the present context, the decision that would have substantive legal consequences is the determination of the CE in C, not the recommendation by the Authority.  Although there could be cases where challenge may be brought in respect of decisions or actions which are no more than steps on the way to the substantive event (see para 33 of Shrewsbury and Atcham BC v Secretary of State) it is a matter of this court’s discretion with regard to the circumstances of the case before it to decide whether such challenge should be entertained, see張德榮對政制及內地事務局局長 HCAL 45/2011, 11 July 2011.

20.In Financial Secretary v Wong (2003) 6 HKCFAR 476, Litton NPJ said at para 93,

“It is not every decision by a decision maker which is susceptible to review: were it otherwise the functioning of the executive arm of government and of statutory bodies and tribunals would be ensnared in multiple applications in the courts.”

21.After referring the passage from Wade and Forsyth, His Lordship continued at para 94,

“The emphasis here is on the decisive nature of the exercise of power.”

22.In the same case, Bokhary PJ said at para 14,

“The courts’ judicial review jurisdiction is of a supervisory nature. This extremely important jurisdiction is not meant for the purpose of micro-managing the activities of subordinate tribunals or administrative decision-makers. It should hardly ever be exercised to review decisions that go only to procedure rather than to the end result.”

23.Applying these principles, I am of the firm view that on the facts of the present case, this court should not entertain a judicial review in respect of the refusal of CE in C to entertain an appeal against the recommendation of the Authority.

Mr Daniel R Fung, SC and Mr Lam Chin Ching Gary, instructed by Baker & McKenzie, for the Applicant

Mr Johnny Mok, SC, instructed by the Department of Justice, for the Putative Respondent

Mr Chua Guan-Hock, SC and Mr John Hui, instructed by Hogan Lovells, Solicitors for the Interested Party